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AA, 


UNIVERSITY  OF 
CAUFOSNJA 

SAN  DiEGO 


Central  University  Library 

University  of  California,  San  Diego 

Please  Note:  This  item  is  subject  to  recall 
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PAPERS  AND  ADDRESSES 

BT 

WILLIAM   GILBERT   DAVTES,  S.B.,  LL.D. 


I 


PAPERS  AND 
ADDRESSES 

BY 

WILLIAM  GILBERT  DAVIES,  S.B.,  LL.D. 


II 

ale 

ttt 


NEW    YORK 

ROBERT    GRIER    COOKE 

INCORPORATED 
MDCCCCVII 


COPTRIGHT,  1906,  BY 
ROBERT  GRIER  COOKE,  INC. 


ROBERT  GRIER  COOKE,  INC.,  NEW  YORK 


Co 
THE  DEVOTED  WIFE 

TO  WHOSE  LOVING  ENCOURAGEMENT  SO  MANY  OF 
THE    FOLLOWING   PAGES  ARE   DUE 

THIS  VOLUME  is  AFFECTIONATELY  DEDICATED 
BY  THE  AUTHOR 


r 


FOREWORD 


I  DO  not  think  it  is  necessary  to  assign  any  reason  for 
publishing  this  book,  except  for  what  seems  to  me  to  be 
a  very  natural  desire  to  collect  into  one  volume  my  scattered 
publications,  so  that  they  may  all  be  available  for  the  use 
of  my  family  and  friends.  It  will  be  seen  that  they  have 
been  written  at  different  times  and  cover  a  wide  range  of 
subjects;  so  I  trust  every  one  into  whose  possession  this  book 
may  come  will  find  something  to  interest  him  or  her.  They 
were  composed  in  brief  intervals  snatched  from  a  busy  pro- 
fessional life,  and  represent  what  should  have  been  leisure 
moments,  as  my  real  work  is  preserved  in  the  records  of 
the  Insurance  Company  with  which  I  was  connected  for 
many  years. 

AR-T-BBYN,  TUXEDO  PARK,  N.  Y. 


CONTENTS 


PAGE 

THE  STONE  MASON  OF  CROMARTY 3 

CLASS-DAT  POEM           11 

ALCHEMY  AND  THE  ALCHEMISTS 25 

TwELPTH-NlGHT  OBSERVANCES 33 

MYSTERIES  AND  MASQUES        43 

THE  SETTLEMENT  OP  NEW  AMSTERDAM 57 

HISTORICAL  SKETCH  OF  CHRIST  CHURCH 79 

TlCONDEROGA  AND  CROWN  POINT 95 

NEW  YORK  IN  1801 Ill 

MYSTERIOUS  DISAPPEARANCES  AND  PRESUMPTIONS  OF  DEATH 

IN  INSURANCE  CASES 121 

THE  LAW  OF  MORTMAIN 177 

THE  LAW  OF  LIFE  INSURANCE 203 

SPEECH  AT  BOSTON,  MASS 289 

SPEECH  AT  SAVANNAH,  GA.           301 

ADDRESS  TO  BOSTON  LIFE  UNDERWRITERS 311 

SPEECH  AT  WILMINGTON,  DEL 319 

LIFE  INSURANCE  IN  ITS  RELATION  TO  LEGAL  MEDICINE     .     .  325 

SPEECH  AT  ST.  NICHOLAS  CLUB  DINNER 345 

SPEECH  AT  DINNER  OF  ALUMNI  OF  TRINITY  COLLEGE  .  351 


THE  STONE  MASON  OF  CROMARTY 

DELIVERED   AT   THE    JUNIOR    EXHIBITION    OF 

THE   CLASS  '60,   TRINITY  COLLEGE, 

HARTFORD,  MAY  lOra,  1859 


"THE  STONE  MASON  OF  CROMARTY" 

IN  a  little  fishing-town  on  Cromarty  Frith  stands  the 
birthplace  of  Hugh  Miller.  Born  and  educated  in  sight 
of  the  sea,  it  was  to  him  only  an  object  of  terror  and  abhor- 
rence. Father,  grandfather,  and  two  uncles  lay  buried 
beneath  its  green  waves.  His  earliest  recollection  was  the 
vision  of  an  outstretched  hand  and  arm,  which  appeared  to 
him  the  night  his  father's  vessel,  with  all  on  board,  sank 
into  that  great  sepulchre. 

A  few  years  later  we  behold  him  at  the  common  school 
of  Cromarty,  acquiring  the  first  principles  of  education. 
While  there  he  seized  with  delight  every  opportunity  to  play 
the  truant,  and  loved  to  wander  along  the  shores  of  his  native 
frith,  or  climb  the  lofty  mountains  which  overshadow  it. 
Fearless  in  disposition,  vigorous  in  mind,  healthy  in  body, 
he  could  not  endure  the  confinement  necessary  to  study,  nor 
the  authority  exercised  over  him  by  his  relations.  It  is 
related  by  his  biographer  that  he  became  a  stone  mason 
because  his  uncle  had  declared  in  that  trade  he  could  never 
succeed. 

The  scene  now  changes,  and  we  behold  the  future  scholar 
engaged  in  the  humble  occupation  I  have  mentioned,  labor- 
ing, sometimes  in  the  north  of  Scotland,  sometimes  in  the 


THE  STONE  MASON  OF  CROMARTY 

south,  sometimes  reveling  in  the  monstrous  wages  of  one 
dollar  per  diem,  sometimes  finding  no  work  at  all.  At  In- 
verness he  advertised  himself  to  "cut  tombstones  neatly  and 
correctly."  But  wherever  his  love  of  wandering  led  him,  in 
whatever  occupation  he  was  engaged,  we  perceive  his  mind 
busily  occupied  in  adding  to  his  store  of  knowledge.  When, 
worn  out  by  the  fatigues  of  the  day,  he  reached  his  humble 
home  at  night,  he  possessed  sufficient  energy  to  apply  himself 
to  severe  study  till  nature  was  exhausted.  Thus  for  fifteen 
years  did  he  pursue  his  laborious  course,  a  book  in  one  hand, 
a  chisel  in  the  other. 

During  this  period,  his  literary  life  may  be  said  to  have 
commenced.  He  published  a  volume  of  verses,  but  was  so 
much  discouraged  by  the  treatment  it  received  that  he  did  not 
dare  to  issue  a  second  work.  He  was  so  incautious  as  to 
mention  upon  the  title-page  that  they  were  the  productions 
of  a  journeyman  mason.  This  statement  furnished  the  key- 
note which  every  critic  struck.  One  and  all  advised  him  to 
stick  to  his  trowel,  and  leave  the  pen  to  those  who  were  better 
qualified  to  guide  it. 

The  scene  again  changes,  and  we  behold  him  the  accountant 
of  a  bank  established  in  his  native  town.  After  continuing 
this  business  for  five  years,  the  great  schism  in  the  Kirk  of 
Scotland  broke  out,  and  Hugh  Miller  was  chosen  editor 
of  the  Edinburgh  Witness,  the  organ  of  the  Free  Church 
Party.  His  situation  as  editor  of  a  widely  circulated  and 
influential  journal  gave  him  fresh  courage,  and  shortly  after 
assuming  that  post  he  published  his  first  prose  work, 
the  "Old  Red  Sandstone,"  which  achieved  a  remarkable 

4 


THE  STONE  MASON  OF  CROMARTY 

success,  and  was  soon  followed  by  his  "Footprints  of  the 
Creator." 

We  now  see  the  mason  in  the  new  characters  of  an  author 
and  a  scholar.  The  seeds  of  information  which  he  had  been 
collecting  during  so  many  years  now  bore  their  fruit,  and 
Hugh  Miller  took  his  stand  among  the  writers  of  the  world. 
Nor  was  it  in  science  alone  that  he  wielded  an  able  pen  and 
exhibited  a  well-cultivated  and  powerful  mind.  His  contribu- 
tions to  polite  literature  are  as  remarkable  and  praiseworthy 
as  his  labors  for  geology  are  valuable  and  useful.  Of  this 
class  it  will  be  sufficient  to  mention  a  single  instance.  In 
1847  he  published  "First  Impressions  of  England  and  its 
People,"  in  which,  to  quote  from  his  reviewer,  "he  displays 
unrivaled  quickness  and  breadth  of  observation,  and  bold 
and  subtle  powers  of  generalization."  Throughout  this 
work,  as  all  his  others,  shines  forth  his  love  for  his  Maker. 
"He  has  not  adopted  one  of  the  free  and  sceptical  notions 
about  religion  which  are  so  widely  circulated  among  poets, 
philosophers,  and  critics.  He  would  stand  up  with  the 
humblest  of  his  countrymen,  in  avowing  and  defending  'the 
faith  once  delivered  to  the  Saints.'"  But  we  need  enter  no 
further  upon  this  analysis  of  his  writings.  We  have  already 
said  sufficient  to  show  the  extent  of  his  literary  labors,  and 
the  versatility  of  his  genius.  Whether  his  subject  were 
science  or  travels,  story  or  biography,  he  proved  himself  to 
be  a  true  scholar,  an  able  writer,  —  last,  but  not  least,  a 
Christian  man. 

In  his  "Footprints  of  the  Creator,"  Hugh  Miller  applied 
his  energies  to  the  most  glorious  labor  which  human  genius 

5 


THE  STONE  MASON  OF  CROMARTY 

can  undertake,  the  defense  of  religion  against  scepticism  and 
infidelity.  The  contest  concerning  the  Biblical  account  of 
the  Creation,  often  carried  on  with  vehemence  by  the  oppo- 
nents and  promoters  of  Christianity,  was  then  revived.  A 
book  entitled  "Vestiges  of  the  Creation,"  had  declared  that 
the  story  of  Moses  was  erroneous,  in  fact,  absurd.  The 
lovers  of  religion  everywhere  were  roused  by  the  assertion, 
and  among  their  foremost  champions  was  Hugh  Miller.  Of 
the  exquisite  style  of  this  work  it  is  unnecessary  to  speak, 
while  its  arguments  are  deemed  irresistible. 

Hard  labor  and  incessant  study  ruined  his  vigorous  con- 
stitution, and  enfeebled  his  mind.  Though  naturally  cour- 
ageous, he  suddenly  conceived  a  great  dread  of  robbers,  and 
imagined  that  frequent  attempts  were  made  to  break  into  his 
museum.  Every  night,  a  broadsword  was  hung  at  the  head 
of  his  bed,  while  loaded  pistols  were  laid  near  his  hand. 
Shortly  after  this  first  symptom,  a  new  form  of  cerebral  dis- 
ease attacked  him,  which,  while  it  lasted,  gave  him  almost 
unendurable  agony.  But  the  last  scene  of  his  life  was  now 
rapidly  approaching.  One  night,  appearing  unusually  cheer- 
ful and  well,  he  spent  the  evening  with  his  wife  and  children, 
and  amused  them  by  reading  extracts  from  his  works.  Not  a 
thought  was  there  of  the  sudden  death  so  soon  to  break  up 
that  little  circle.  No  grim  phantom  of  agony  and  despair 
arose  before  them.  All  was  bright  and  happy,  and  he,  the 
centre  of  the  group,  appeared  once  more  to  enjoy  the  full 
possession  of  his  health  and  faculties.  But  Death,  though 
concealed,  was  present.  Hugh  Miller  retired,  seemingly  in 
far  better  spirits  than  he  had  been  for  a  long  time,  and  the 

6 


THE  STONE  MASON  OF  CROMARTY 

next  morning,  his  body  was  found  lying  upon  the  floor  of  his 
room.  Near  him  was  a  discharged  pistol,  upon  the  table  was 
a  sheet  of  paper  bearing  a  few  fond  farewell  words  to  his 
wife;  and  by  the  act  of  his  own  hand  the  spirit  of  the  scholar- 
mason  had  passed  away  to  Him  who  gave  it,  to  encounter 
judgment;  —  let  us  hope,  forgiveness. 

Hugh  Miller  fell  a  martyr  to  his  zeal  for  study.  We  have 
already  seen  how,  under  all  circumstances,  he  applied  him- 
self to  books:  whether,  chisel  in  hand,  he  wrought  in  the  quar- 
ries of  Scotland,  or  with  the  pen  cast  up  long  rows  of  figures 
in  the  banking  office  of  Cromarty,  every  spare  moment  was 
devoted  to  the  acquisition  of  knowledge.  Engaged  in  this 
pursuit,  he  knew  no  weariness,  felt  no  fatigue.  Persevering, 
determined  to  surmount  every  obstacle,  he  presents  to  our 
view  an  amount  of  labor  which  is  rarely  equaled.  Towards 
the  close  of  his  life  he  was  occupied  in  writing  articles  for  the 
Witness,  delivering  lectures  on  Geology,  and  preparing  a 
work  for  the  press  at  the  same  time.  The  body  of  a  Hercules, 
and  the  brain  of  a  Webster,  could  not  long  sustain  such  exer- 
tions. But  he  felt  that  he  had  a  mission  to  perform,  he  felt 
that  his  talents  were  not  given  him  to  be  wasted,  and,  as  long 
as  his  strength  endured,  he  devoted  himself  to  usefulness; 
until  at  last  his  mind  forsook  him,  and  in  one  rash  moment 
the  silver  cord  was  loosened,  the  golden  bowl  was  broken. 

The  patient  watcher  of  the  stars,  seated  in  his  lonely  cham- 
ber, sees  a  bright  meteor  flash  across  the  sky.  With  lightning 
velocity  it  speeds  upon  its  way,  cleaving  the  dark  shades  of 
night,  and  illuminating  heaven  and  earth  with  its  sparkling 
beams.  But,  ere  reaching  the  zenith,  it  vanishes,  and 

7 


THE  STONE  MASON  OF  CROMARTY 

naught  but  its  memory  remains.  Like  the  course  of  this 
flaming  visitant  was  the  career  of  Hugh  Miller.  Born  and 
bred  in  obscurity,  receiving  only  the  elements  of  education, 
he  suddenly  appeared  before  the  world  in  the  threefold 
character  of  the  self-taught  scholar,  the  defender  of  religion, 
and  the  martyr  to  his  love  of  science.  "His  race  is  run,  his 
errand  done,"  but  when  the  names  of  warriors  and  conquerors 
shall  have  passed  away,  the  Stone  mason  of  Cromarty  will  be 
remembered  as  one  who  used  his  talents  for  their  noblest  ends, 
for  the  advancement  of  true  science,  for  the  glory  of  his  God. 


CLASS-DAY  POEM,  '60. 

TRINITY  COLLEGE,  JUNE  7ra. 


CLASS-DAY   POEM,  '60 

ALONE  in  my  lofty  chamber* 
I  sat  in  a  Summer  dream, 
And  saw  through  my  open  window 

The  lights  of  the  city  gleam. 
One  by  one  extinguished 

They  passed  from  my  sight  away, 
And  before  me,  in  solemn  silence, 

The  slumbering  city  lay. 
From  the  bowl  of  my  trusty  meerschaum 

The  curling  smoke-wreaths  rise 
And  float  on  the  evening  breeze  above 

To  the  dark  blue  silent  skies. 
The  silvery  moon  sails  on 

O'er  the  pathway  of  the  Ghosts; 
While  the  fleecy  clouds,  like  spirit  shrouds, 

Envelop  the  mighty  hosts 
Which  tread  the  Milky  Way, 

Where,  as  Indian  legends  tell, 
The  shades  of  those  who  were  best  on  earth 

In  the  Land  of  Hereafter  dwell. 

*  At  this  time  Trinity  College  occupied  the  hill  where  the  State 
Capitol  now  stands. 

11 


CLASS-DAY  POEM,   '60 


And  the  steeple  clock  is  tolling, 

With  its  hands  all  folded  tight, 
To  breathe  a  prayer  for  all  that's  fair 

At  twelve  o'clock  at  night. 
All  nature  is  still  and  quiet; 

No  sound  is  heard  but  the  breeze 
As  it  sings  among  the  countless  leaves 

Of  our  sturdy  "Campus"  trees. 
The  floods  of  the  golden  moonlight 

Above  and  about  me  roll, 
And  fill  with  poetic  ardor 

My  earthward-groveling  soul. 

I  dream  of  ancient  legends, 

Of  many  an  olden  tale,  — 
Of  ladies  fair,  with  smiling  eyes, 

Of  knights  in  iron  mail; 
Of  Crecy  and  of  Agincourt 

Where  fell  the  gallants  of  France; 
Of  Coeur  de  Lion  and  Saladin, 

And  heroes  of  old  romance; 
Of  Bois  Guilbert,  and  of  Ivanhoe, 

Unstained  by  reproach  of  fear; 
Of  Gonsalvo,  Spain's  great  Captain; 

Of  Bayard,  le  preux  chevalier. 
And  I  dream  of  the  lovely  dames  for  whom 

They  strove  to  be  good  and  brave: 
As  the  Roman  matron  smiled  at  death 

Her  husband's  honor  to  save, 
12 


CLASS-DAY  POEM,    '60 


So,  with  proud  look  and  smiling  eye 

They  battled  with  their  grief, 
And  bade  their  knights  go  forth  to  war 

For  the  glory  of  their  chief. 
Such  was  fair  Rowena,  who  fled  away 

From  her  father's  home  to  sail 
O'er  the  ocean  wide  with  her  Viking  bold, 

Fearing  nor  storm  nor  gale. 
Such  Guinevere,  whose  beautiful  face 

Led  Lancelot  to  sin; 
Such  Rebecca,  whose  large,  dark,  lustrous  eyes 

Revealed  the  soul  within; 
Such  many  a  maid  who,  like  sweet  Elaine, 

Wept  over  her  lover's  shield; 
Whose  favors  waved  o'er  helmets  bright 

On  many  a  well-fought  field. 
Thus  dreaming,  I  remember 

An  ancient  tale  I'll  tell 
Now,  when  we  meet  together 

For  our  long  and  sad  farewell. 
As  we  sit  in  the  pleasant  coolness 

Of  this  gray-grown  chapel  wall, 
And  across  our  grassy  "Campus" 

The  evening  shadows  fall; 
As  the  leaves  in  the  gentle  zephyrs 

Rustle  to  and  fro, 
I'll  sing  you  a  legend,  Classmates, 

Of  what  happened  long  ago. 


13 


CLASS-DAY  POEM,   '60 


The  day  was  slowly  waning:  the  sun  had  sunk  to  rest, 
And  the  sunset  clouds  were  rising  from  out  the  glowing  West: 
With  many  a  changing  color  and  form  they  mount  on  high, 
And  unfurl  their  gorgeous  banners  across  the  western  sky. 
The  twilight  gently  lingering  weeps  'neath  her  azure  veil; 
And  with  drooping  heads  the  flowers  sigh  as  the  day  grows 

pale. 

Then,  as  deeper  grows  the  darkness,  and  lower  sinks  the  sun, 
The  glittering  army  of  the  stars  comes  forward  one  by  one;  — 
The  jewels  in  Heaven's  coronet,  they  sparkle  clear  and  bright 
And  diffuse  their  pleasant  radiance  thro'  the  calm  cool  summer 

night. 

The  Great  Bear  stalks  majestic  toward  the  Northern  Pole, 
While  Perseus  presses  forward,  impatient,  to  his  goal, 
Andromeda  stands  helpless,  wrapped  in  her  long  dark  hair, 
While  anxious  Cassiopiea  watches  from  her  royal  chair, 
Aquarius  pours  forth  torrents  from  his  inverted  vase, 
And   o'er   them   transformed   Leda   glides   with     matchless 

swanly  grace. 
The  Pleiads,  mourning  their  lost  sister,  cluster  in  their  broken 

group, 

And  Orion,  in  his  glittering  belt  arrayed,  surveys  the  troup. 
The  soft  moon  rises  slowly,  and  before  her  mellow  light, 
Awed  by  her  glorious  beauty,  the  stars  become  less  bright. 
Her  golden  beams  fall  gently,  and  dance  o'er  hill  and  dale, 
And  disperse  the  gloomy  shadows  far  down  the  woody  vale, 
Where  the  lonely  Usk  creeps  sluggishly  upon  its  winding  way, 
While  on  its  placid  bosom  sparkles  every  silvery  ray. 
Formed  by  their  elfish  motions,  the  glittering  path  is  seen, 

14 


CLASS-DAY  POEM,    '60 


Which  seems  to  lead  to  Heaven,  as  in  Jacob's  holy  dream. 
But,  alas!  like  every  pleasure  which  in  this  world  lures  us  on, 
The  moment  we  approach  it,  that  moment  it  is  gone. 
As  the  scene  becomes  still  brighter,  it  shows  a  royal  train 
Moving  along  the  river  with  bursts  of  minstrel  strain; 
The  moon-beams,  falling  o'er  it,  flash  back  from  lance  and 

helm, 

From  suits  of  linked  armor,  and  from  regal  diadem. 
With  shouts  of  joyous  laughter,  they  gaily  pass  along, 
With  many  a  playful  jest,  and  many  a  merry  song. 
But  their  leader,  wan  and  downcast,  rides  foremost  and  alone, 
His  armor  bent  and  broken,  his  crested  helmet  gone; 
The  flush  of  shame  is  on  his  cheek;  grief  lurks  within  his  eye, 
Laughter  and  jest  he  heeds  not,  nor  deigns  he  to  reply! 
For  that  day  was  held  a  tournament  on  the  lovely  banks  of 

Usk, 

From  the  dawning  of  gray  sunlight  to  the  setting  in  of  dusk, 
And  before  the  day  was  ended  the  sun  shone  on  the  field 
Strewn  with  broken  spears  and  lances,  and  dented  helm  and 

shield; 

For  the  Knights  of  the  Round  Table  met  every  one  that  came, 
And  fought  the  fight  for  life  or  death,  for  honor  and  for  fame. 
Right  gallantly  and  bravely  those  knights  had  held  their  own, 
And  before  the  spear  of  Lancelot  the  doughtiest  chief  went 

down. 

Yet  next  to  him,  the  noblest  was  one  unknown  to  all; 
Ne'er  before  had  any  seen  him  near  Caerleon's  palace  hall. 
Black  and  gloomy,  firmly  fastened,  was  the  iron  mail  he  wore. 
While  no  herald's  mark  of  honor  glittered  on  the  shield  he  bore. 

15 


CLASS-DAY  POEM,   '60 


Tho'  thus  devoid  of  glory,  no  carpet  knight  was  he, 

But  versed  in  every  weapon  used  in  days  of  chivalrie. 

With  lance  in  rest,  he  fearless  plunged  into  the  thickest  fray, 

And  to  his  arm  his  party  owed  victory  that  day; 

Before  his  charge,  full  many  a  knight  was  hurled  upon  the 

ground, 
Who  was  numbered  with  the  chosen  band  that  filled  the 

Table  Round; 

Full  many  a  knight  grown  old  in  war,  and  covered  with  renown 
From  glorious  deeds  in  battle,  before  that  lance  went  down. 
Where'er  he  rode  upon  the  field  the  wondering  crowd  fell 

back, 
And  wounded  knights,  with  broken  spears,  lay  stretched  upon 

his  track. 

The  people  standing  'round  the  lists  gazed  on  him  with  sur- 
prise, 

As  one  by  one  he  conquered  the  lords  before  their  eyes; 
As  rang  on  shield  and  helmet  his  fierce  and  mighty  blows, 
As  tribute  to  his  prowess,  shout  after  shout  arose. 
The  ladies,  who,  in  those  days,  loved  gallant  men  to  see, 
Who  with  "suaviter  in  modo,"  joined  "fortiter  in  re,"  — 
Waved  their  silken  scarfs  and  kerchiefs  in  honor  of  the  knight, 
And  gazed  on  him  with  smiling  eyes,  from  the  lofty  galleries' 

height. 

The  faultless  King,  Sir  Arthur,  his  actions  marked  with  pride, 
Wondering  that  such  strength  and  skill  in  such  a  stripling 

could  abide. 

To  test  him,  he  himself  resolved  to  combat  in  the  field 
In  armor  undistinguished,  with  no  badge  upon  his  shield. 

16 


CLASS-DAY  POEM,    '60 


Descending  from  his  lofty  throne,  whereon  he  sat  in  state, 
Donning  hastily  his  helmet,  he  hied  him  to  the  gate 
Where  sat  the  heralds  to  whom  every  knight  that  came  that  day 
Must  declare  his  name  and  lineage  e'er  entering  in  the  fray. 
Once  admitted,  he  rode  forward,  regardless  of  his  danger, 
Seeking  only,  in  the  melee,  to  meet  the  gallant  stranger; 
Soon  he  saw  him  coming  towards  him,  leading  on  his  con- 
quering band, 
While  steed  and  horseman  sank  to  earth  before  his  mighty 

brand. 
When  these  champions  saw  each  other,  each  laid  his  lance  in 

rest 

And  covered  with  his  iron  shield  his  stout  and  dauntless  breast, 
Each  shook  his  rein,  and  touched  with  spur  his  fiery  foaming 

steed, 
And  urged  him  on  with  voice  and  heel  to  reach  his  utmost 

speed. 

The  lance  of  each  was  splintered  into  fragments  by  the  shock, 
But  the  stranger  in  his  saddle  sat  unmoved  as  any  rock. 
Not  so  the  King!  who  from  his  horse  was  hurled  by  the  blow, 
And  in  the  dusty  plain  his  royal  head  was  pillowed  low. 
Then  rose  again  the  plebeian  shouts  to  greet  the  victorious 

hand, 
For  they  knew  not  that  the  vanquished  was  the  mightiest  in 

the  land. 

In  pain  arose  King  Arthur  from  the  ground  whereon  he  lay, 
And  in  mingled  shame  and  anguish  he  slowly  crept  away. 
Then  casting  off  his  armor,  he  again  assumed  his  crown, 
And,  mounting  to  the  galleries,  upon  his  throne  sat  down; 

17 


CLASS-DAY  POEM,    '60 


He  spake  to  brave  Sir  Lancelot  of  the  Lake,  who  by  him  stood, 
Who,  of  all  the  Knights  in  Christendom,  was  accounted  great 

and  good; 

Who  his  equal  in  the  lists  of  battle  never  yet  had  found, 
The  strongest  lance  and  bravest  sword  of  all  the  Table  Round. 
Him  bade  the  King  to  arm  with  speed,  and  go  forth  in  his 

might 

To  vindicate  his  honor  'gainst  the  young  and  dauntless  knight. 
Right  gladly  armed  Sir  Lancelot  and  sprang  upon  his  horse, 
And  with  visor  closed,  and  spear  in  rest,  rode  slowly  down  the 

course. 

The  stranger  came  to  meet  him,  though  sore  afraid  was  he, 
Knowing  full  well  that  by  his  arm  he'd  surely  vanquished  be; 
His  own  lance  was  broken,  but  by  the  laws  of  the  fray 
He  must  receive  his  adversary's  point  as  best  he  may. 
Before  that  frightful  weapon  of  lancewood  strong  and  good, 
No  Christian  and  no  heathen  ever  yet  unharmed  had  stood; 
Right  thro'  the  shield  and  breastplate  the  pointed  iron  rushed, 
And  from  out  the  wound,  in  torrents,  the  bright-red  life-blood 

gushed. 

But  the  stranger  smote  Sir  Lancelot  so  stoutly  with  his  blade, 
That  broken  was  his  helmet,  and  a  ghastly  wound  was  made: 
So  stunning  was  the  blow  the  good  knight  in  his  saddle  reeled, 
While  his  opponent,  sorely  injured,  departed  from  the  field: 
He  hastened  to  his  squire,  who  soon  drew  forth  the  steel, 
And  in  a  hermitage  awaited  until  his  wound  should  heal. 
Meanwhile  the  fight  had  ended,  and  the  heralds  made  pro- 
claim 

That  Sir  Tristam  of  Leonesse  was  the  brave  stranger's  name. 

18 


CLASS-DAY  POEM,    '60 


To  him  the  King  awarded,  as  was  most  justly  due, 
The  victory  in  the  combat,  as  a  warrior  bold  and  true. 
But  when  the  Marshals  sought  him,  to  deliver  him  the  prize, 
He,  unseen  and  unregarded,  had  vanished  from  their  eyes. 
Grieved  then  was  good  King  Arthur,  and  grieved  was  all  his 

court, 

For  they  feared  the  noble  chieftain  had  perished  in  the  sport. 
Then  called  the  King  two  of  his  knights  and  gave  them  strict 

command 

To  go  forth  from  his  presence,  and  search  throughout  the  land, 
Till  they  should  find  Sir  Tristam,  that  he  might  numbered  be 
With  the  Knights  of  the  Round  Table  in  their  goodly  com- 

panie. 

Then,  as  the  day  was  ended  and  night's  shadows  'gan  to  fall, 
The  King  returned  in  silence  to  Caerleon's  palace  hall. 

By  hap,  a  short  time  after,  Sir  Lancelot  sallied  forth, 

Resolved  to  seek  for  glory  and  adventure  in  the  North. 

Clad  in  his  linked  armor,  his  good  lance  in  his  hand, 

While,  by  his  side,  within  its  sheath,  rested  his  famous  brand, 

He  departed,  unattended,  all  evils  to  repress,  — 

The  unprotected  to  defend,  their  injuries  to  redress. 

As  he  reached  a  pleasant  meadow,  beside  a  flowing  stream, 

Thro'  the  gently-waving  greenwood  he  beheld  bright  armor 

gleam; 

And  from  out  the  leafy  forest  into  the  lovely  glade 
A  knight  rode  forth  to  meet  him,  for  battle  all  arrayed. 
Like  two  vast  thunder  clouds  the  warriors  'gainst  each  other 

dash,  — 

19 


CLASS-DAY  POEM,    '60 


As  in  a  Summer  evening  the  forked  lightnings  flash. 

So  fierce  was  the  encounter,  broken  was  each  saddle  girth, 

And  each  from  off  his  charger  fell  headlong  to  the  earth. 

A  moment,  and  from  out  their  scabbards  leap  the  good  swords 

bright, 

And  with  quick  attack  and  parry  flash  in  the  clear  sunlight. 
Thus,  long  they  fought  together,  until  the  gurgling  blood 
Dyed  ground  and  sword  and  armor  with  its  bright  and  crim- 
son flood. 

Sir  Lancelot,  astonished,  "By  my  good  faith!"  cried  he, 
"Thou  fight'st  as  well  as  any  knight  I  ever  yet  did  see. 
Thy  name  and  lineage  I  would  ask."    Then  out  the  stranger 

spake: 
"Mine  is  Tristam  of  Leonesse!    Thine?"     " Lancelot  of  the 

Lake!" 
Then  down  threw  those  stalwart  warriors  their  bent  and 

bloody  brands, 

And  swore  eternal  friendship  upon  their  good  right  hands. 
And  each  took  off  his  armor,  and  washed  away  his  gore, 
And  side  by  side  set  forward  for  Arthur's  court  once  more. 
As  with  merry  jest  and  laughter  they  through  the  forest  went, 
They  encountered  Sir  Gaheris  and  Sir  Gawain  by  Arthur  sent 
In  search  of  brave  Sir  Tristam  to  travel  thro'  the  realm 
And  never  to  return  until  they  brought  him  back  with  them. 
Right  glad  were  they  with  Lancelot  the  long-sought  knight  to 

see, 

And  they  all  rode  on  together  in  a  goodly  companie. 
When  they  reached  the  palace  courtyard,  straightway  came 

the  monarch  out, 

20 


CLASS-DAY  POEM,    '60 


With  his  train  of  gallant  nobles  encircling  him  about. 
"Welcome!    Welcome!"  cried  he,  as  he  took  Sir  Tristam  by 

the  hand; 
"Welcome,  for  as  brave  and  true  a  knight  as  lives  within  this 

land!" 
"Welcome!"  said  all  the  nobles,  and  they  passed  within  the 

hall. 
"Welcome!    Welcome!  good  Sir  Tristam,"  said  the  Queen 

and  ladies  all. 

I  have  told  this  story,  Classmates, 
In  my  awkward,  halting  rhyme, 
To  show  the  deeds  which  knights  performed 
In  battle,  in  old  time. 
And  as,  when  the  fight  was  over, 
And  the  victor  gained  the  prize,  — 
He  deemed  he  saw  his  best  reward 
In  a  lady's  smiling  eyes;  — 
So  we,  who  have  termed  ourselves 
Knights  of  the  Table  Round, 
In  the  praise  of  those  whom  most  we  love 
Our  highest  joy  have  found! 
As  they  made  every  effort 
To  win  themselves  a  name, 
So  we  have  struggled  manfully 
For  honor  and  for  fame! 
We  have  fought  the  fight  together 
In  our  quiet  College  life, 
And  we  now  go  forth,  tho'  singly, 
21 


CLASS-DAY  POEM,    '60 


To  a  greater,  nobler  strife. 
We  have  fought  the  battle  bravely, 
We  have  done  our  duty  here, 
And  of  our  success  hereafter 
We  should  have  no  sickly  fear! 
Only  keep  one  holy  object 
Ever  bright  before  our  eyes;  — 
And  determine  "To  act  well  our  part; 
There  all  the  honor  lies!" 
So  that  when  we  reach  life's  sunset 
And  review  the  path  we've  trod, 
We  may  feel  that  we  have  labored 
"For  our  Country  and  our  God!" 
And  when  our  day  is  ended,  — - 
Our  spirit  gained  its  goal, 
We  may  each  feel  —  "I  have  kept  the  Faith, 
Christ  receives  my  soul!" 


ALCHEMY    AND    THE    ALCHEMISTS 

COMMENCEMENT  ORATION,  JUNE  28rH,  1860 


ALCHEMY  AND  THE  ALCHEMISTS 

TO  investigate  the  gradual  development  of  the  human 
mind,  to  trace  an  idea,  expanded  slowly  by  successive 
generations  until  it  becomes  a  fact,  to  follow  back  a  principle 
of  science,  step  by  step,  until  we  reach  its  germ  in  some  appar- 
ently unimportant  and  trivial  thought,  is  always  a  curious, 
as  well  as  interesting,  process.  The  great  work  of  man  is 
improvement,  and  thus  it  happens  that  nothing  springs  per- 
fected into  being,  but,  commencing  with  the  little  seed, 
slowly  and  by  almost  imperceptible  gradations  becomes  the 
strong  and  full-grown  tree.  Every  great  discovery  or  inven- 
tion, whether  in  science,  philosophy,  or  art,  has  passed 
through  this  process,  and  it  is  by  noting  their  developments 
that  we  read  the  history  of  the  human  mind. 

In  this  study,  we  often  —  I  might  say,  always  —  see  him 
who  is  far  in  advance  of  his  age  scoffed  at  as  an  enthusiast  or 
an  idiot.  Not  only  a  Galileo  is  persecuted  for  daring  to 
maintain  that  the  planets  move,  not  only  a  Columbus  over- 
whelmed with  scorn  for  believing  that  an  undiscovered  world 
exists.  Yet  for  such  men  the  laurel  crown  is  surely  woven, 
though  the  brows  upon  which  it  should  repose  have  returned 
to  dust  before  their  merit  is  acknowledged.  They  sink  to 
rest,  but  the  memory  of  their  deeds  remains,  and  future  ages 

25 


ALCHEMY  AND  THE  ALCHEMISTS 

appreciate  their  labors  and  deplore  their  fate.  Thus  has  it 
been  with  the  alchemists.  Derided  and  ridiculed  for  nearly 
three  hundred  years,  laughed  at  as  the  wildest  of  all  enthu- 
siasts, the  most  romantic  of  all  dreamers,  —  now  offered  their 
niche  in  the  temple,  among  those  who  devoted  themselves  to 
science.  Modern  chemistry  acknowledges  that  their  labors 
laid  the  foundation  of  her  noble  structure,  and  from  their 
discoveries  she  has  elucidated  many  of  her  most  important 
truths.  She  asserts  even  that  the  Philosopher's  Stone,  whose 
magic  touch  was  to  transform  every  metal  into  gold,  is  not 
merely  the  fancy  of  a  diseased  imagination,  but  a  problem 
whose  solution  she  will  soon  obtain.  Under  these  circum- 
stances, it  may  not  be  useless  or  unentertaining  to  consider 
briefly  their  history  and  their  aims. 

Alchemy  was  first  cultivated  by  the  Arabs  and,  like  most 
of  the  natural  sciences,  by  them  imparted  to  Europe.  This 
science,  with  its  astounding  discoveries  —  its  wonderful  in- 
formation concerning  the  composition  of  the  works  of  nature 
—  its  still  more  attractive  promises  of  boundless  wealth  and 
endless  life,  offered  most  tempting  allurements.  Can  we 
wonder  that  in  those  dark  ages  of  superstition  and  folly  such  a 
system  as  this  should  have  met  success  ?  Can  we  wonder 
that,  when  those  who  were  accounted  men  of  learning  were 
induced  by  its  grains  of  truth  to  accept  also  its  mass  of  chaff, 
the  vulgar  and  illiterate  should  be  dazzled  by  its  pretensions  ? 
With  such  enticements  and  such  advocates,  we  need  not  deem 
it  strange  that,  a  few  centuries  later,  we  find  it  universally 
received.  Monks,  like  Roger  Bacon,  practised  it  in  the  dark 
recesses  of  their  cells.  Kings,  like  Henry  VI  of  England, 

26 


ALCHEMY  AND  THE  ALCHEMISTS 

endeavored  by  means  of  it  to  recruit  their  empty  coffers. 
Nobles  and  commoners  expended  their  fortunes,  and  wasted 
their  lives,  in  the  vain  effort  to  penetrate  its  mysteries.  In 
those  days  the  student  of  nature  did  not,  as  now,  invite  the 
world  to  view  his  labors  and  participate  in  the  fruits  of  his 
discoveries.  The  alchemist  shunned  the  public  gaze  and 
courted  the  deepest  retirement  and  seclusion.  We  read  the 
lives  of  those  who,  immured  in  their  lonely  cells,  surrounded 
by  alembics  and  retorts,  and  seeing  no  human  face,  ate, 
watched,  and  slept  through  weary  days  and  anxious  nights  for 
ten  long  years,  maintaining  an  undying  fire  beneath  the  huge 
still  whose  product  was  expected  to  reward  all  their  labors; 
and  then  saw  the  object  of  so  many  hopes  and  fears  ruined 
by  some  unforeseen  catastrophe.  Yet,  undeterred  and  un- 
discouraged,  the  patient  philosopher  would  recommence  his 
hopeless  task.  Before  such  perseverance  and  such  energy 
we  stand  astonished,  and  regret  it  was  not  devoted  to  some 
more  practical  end. 

The  votaries  of  alchemy  insisted  that  its  principles  were 
first  asserted  by  Solomon  and  Pythagoras,  and  that  beneath 
the  solid  structure  of  the  Great  Pyramid  Hermes  deposited 
the  secret  of  the  Philosopher's  Stone,  written  with  letters  of 
emerald  upon  plates  of  gold.  Even  men  of  learning  and 
students  of  the  classics  bent  their  influence  to  support  these 
fancies.  Suidas  himself  gravely  states  that  the  Golden  Fleece 
for  which  the  Argonauts  encountered  so  many  perils  was  a 
parchment  scroll,  on  which  was  inscribed  the  method  for 
transmuting  metals. 

As  the  ages  grew  still  darker,  and  the  human  mind  yielded 
27 


ALCHEMY  AND  THE  ALCHEMISTS 

itself  a  willing  prey  to  every  superstition  and  folly,  alchemy 
degenerated  into  mere  magic  and  mysticism.  A  pantheistic 
tone  becomes  apparent  among  the  students  of  the  time,  and 
every  chemical  reaction  is  ascribed  to  supernatural  agency. 
This  was  but  natural  at  a  period  when  even  the  Church  had 
lost  sight  of  the  One  Triune  God,  and  called  for  the  interven- 
tion of  saints  and  minor  deities  in  all  the  affairs  of  life.  This 
disposition  culminates  with  Paracelsus  at  the  beginning  of  the 
sixteenth  century.  To  him,  an  imprisoned  sprite  was  en- 
closed in  every  base,  while  a  fierce  and  flaming  demon  lurked 
in  every  acid.  Every  operation  of  nature,  every  chemical 
union,  was  ascribed  to  a  contest  between  these  invisible 
spirits,  as  we  may  trace  in  many  of  the  names  still  used  by 
chemists. 

The  Reformation  came,  with  its  glorious  light,  sweeping 
away  the  thick  cobwebs  of  superstition  and  error,  and  illu- 
minating the  dark  recesses  of  the  human  mind.  Men  awoke 
from  the  lethargy  in  which  they  had  so  long  slumbered,  and 
throwing  off  the  yoke  of  intellectual  servitude  learned  to 
think  and  act  for  themselves.  Science,  no  less  than  religion, 
felt  the  influence  of  the  change,  and  rose  at  once  to  its  true 
position.  No  longer  groping  in  obscure  and  narrow  paths, 
no  longer  resting  on  false  hypotheses  and  imperfect  reasoning, 
alchemy  established  the  unalterable  dictum,  that  nothing 
should  be  assumed  which  could  not  be  clearly  proved.  With 
her  followers  in  this  age  begins  the  epoch  of  inductive  reason- 
ing, and  she  emerges  from  her  chrysalis  in  the  form  of  modern 
chemistry.  The  reign  of  superstition  is  ended,  the  dominion 
of  true  science  takes  its  place. 

28 


ALCHEMY  AND  THE  ALCHEMISTS 

The  ends  of  the  alchemists  were  lofty,  their  aspirations 
noble.  They  hoped  that  their  efforts  would  ameliorate  the 
condition  of  the  human  race,  and  render  the  world  happier 
and  better.  They  were  actuated  by  no  selfish  desire  to  obtain 
wealth  for  themselves  alone,  but  intended  to  furnish  it  freely 
to  all  mankind.  Nor  should  we  consider  their  expectations 
absurd  or  ridiculous.  The  great  Sir  Humphrey  Davy  was 
led  by  his  researches  to  declare  as  his  opinion  that  chemistry 
would  soon  make  gold  the  commonest  of  metals.  The  later 
experiments  of  Schonbein  and  Faraday  tend  to  increase  this 
probability,  and  confirm  their  hopes.  When  we  see  the  same 
substance  existing  as  the  common  and  unsightly  charcoal  and 
the  rare  and  sparkling  diamond,  the  brittle  phosphorus,  in- 
flamed by  the  slightest  friction,  changed  into  a  dark  elastic 
substance  which  no  heat  can  kindle,  sulphur  losing  all  its 
ordinary  properties  and  becoming  a  dark  and  viscid  fluid, 
oxygen  so  altered  as  to  be  capable  of  identification  only  by 
the  most  subtle  test,  we  may  readily  believe  that  gold  and 
silver  may  be  only  other  forms  of  some  baser  metal.  Con- 
sider also  that  many  of  these  elements  have  the  same 
atomic  weight,  and  our  argument  from  analogy  is  complete. 

Such,  in  brief,  is  the  history  of  the  alchemists,  and  the  end 
for  which  they  labored.  And  although  I  recognize  and 
deplore  their  errors,  I  would  ascribe  them  to  the  spirit  of  the 
age,  especially  to  the  influence  of  a  corrupted  church,  rather 
than  to  the  science,  or  its  followers.  We  can  view  in  the 
clear  light  of  scientific  knowledge  what  they  saw  "as  through 
a  glass,  darkly,"  we  can  investigate  what  they,  with  limited 
apparatus  and  still  more  limited  means,  could  only  conjecture. 

29 


ALCHEMY  AND  THE  ALCHEMISTS 

I  would  claim  for  them  a  proper  appreciation  as  men  who 
devoted  themselves  to  science  for  the  benefit  of  mankind. 
More  than  all,  I  would  honor  them  as  the  real  founders  of 
modern  chemistry :  —  a  science  to  which  much  of  the  civiliza- 
tion of  the  world  is  due  for  the  discoveries  she  has  made,  and 
the  improvements  she  has  promoted  in  agriculture  and  the 
arts:  a  science  which  has  furnished  incalculable  aid  to  medi- 
cine by  the  information  she  has  given  concerning  our  bodies, 
and  the  best  manner  of  preserving  and  perfecting  them.  And 
especially,  a  science  which,  more  than  any  other,  shows  the 
omniscience  of  the  Designing  Mind  which  could  from  a  few 
simple  elements  form  the  endless  variety  of  natural  objects 
which  encircles  us,  and  in  which  we  see  reflected,  as  in  a 
mirror,  His  goodness  and  His  power. 


30 


TWELFTH-NIGHT   OBSERVANCES 

A   PAPER   READ   BEFORE   THE   ST.   NICHOLAS   CLUB 
JANUARY  GTH,  1887 


TWELFTH-NIGHT  OBSERVANCES 

Gentlemen  of  the  St.  Nicholas  Club: 

THE  occasion  suggests,  or  rather  prescribes,  the  subject. 
Having  been  invited  to  read  a  paper  to  you  on  "Twelfth- 
Night,"  it  is  imperative  to  take  for  a  text  the  associations  of 
the  festival.  It  would  seem  proper  that  I  should  refer  rather 
to  its  social  than  to  its  ecclesiastical  features;  yet  it  is  so  essen- 
tially a  church  festival  in  its  character,  that  it  is  impossible  to 
avoid  mention  of  the  legend  which  gives  significance  to  the 
day.  Coming  at  the  end  of  the  Christmas  holidays,  the  last 
of  the  thirteen  days  devoted,  from  the  earliest  period  of  the 
Christian  Era,  to  the  celebration  of  the  manifestation  of  God 
in  the  flesh,  the  picture  of  the  Holy  Babe  smiling  from  his 
mother's  knee  upon  the  Wise  Men  of  the  East  kneeling 
before  him  is  the  one  which  first  comes  to  our  minds  as  the 
great  event  which  the  Western  Church  has  always  remem- 
bered on  this  anniversary.  In  the  Eastern  Church  other 
incidents  were  held  to  have  occurred  at  the  same  time;  such 
as  the  baptism  of  our  Lord  in  the  River  Jordan,  the  miracle 
of  the  multiplication  of  the  five  loaves  and  the  two  fishes,  and 
the  first  miracle,  the  changing  of  water  into  wine  at  the  mar- 
riage in  Cana  in  Galilee.  It  was  in  vague  allusion  to  the 
latter  that  it  was  for  centuries  in  some  of  the  Eastern  churches 

33 


TWELFTH-NIGHT  OBSERVANCES 

the  custom  to  fetch  water  from  the  springs  at  midnight  on 
this  festival,  in  the  belief  that  it  would  then  keep  fresh  and 
pure  through  the  whole  of  the  coming  year.  But  the  Western 
churches  without  exception  have  celebrated,  on  the  so-called 
"Little  Christmas,"  only  the  visit  of  the  Magi  or  Wise  Men 
to  the  infant  Saviour. 

The  legend  alluded  to  has  appeared  in  many  forms,  but 
I  take  by  preference  the  one  given  by  Mrs.  Clement  in  her 
"Handbook  of  Legendary  and  Mythological  Art."  Accord- 
ding  to  her  story,  these  Magi  were  not  men  who  knew  the 
arts  of  magic,  but  wise  princes  of  some  Eastern  country. 
The  prophecy  of  Balaam  had  been  held  in  remembrance  by 
their  people,  —  "I  shall  see  him,  but  not  now;  I  shall  behold 
him,  but  not  nigh;  there  shall  come  a  star  out  of  Jacob,  and 
a  sceptre  shall  rise  out  of  Israel."  And  when  they  saw  a 
star  differing  from  those  which,  as  learned  astronomers,  they 
had  studied,  they  recognized  it  as  the  star  of  the  prophecy, 
and  at  once  followed  where  it  led.  It  has  been  said  that  the 
star  when  first  seen  had  the  form  of  a  child  bearing  a  sceptre 
or  cross.  The  Wise  Men  said  farewell  to  their  homes  and 
friends,  and  took  numerous  attendants  for  their  long  journey. 
After  many  perils  and  difficulties,  the  climbing  of  mountains, 
the  crossing  of  deep  streams,  they  came  to  Jerusalem.  On 
inquiring  for  the  king  they  sought,  they  were  directed  to 
Bethlehem,  and  asked  by  Herod  to  bring  him  news  on  their 
return  of  where  the  child  could  be  found,  that  he  too  might 
worship  him.  At  length  the  star  stood  still  over  the  lowly 
place  where  Jesus  was.  No  matter  how  different  may  have 
been  their  previous  imaginings  from  the  reality  they  found, 

34 


TWELFTH-NIGHT  OBSERVANCES 

their  faith  was  equal  to  the  demand  upon  it,  and  they  bowed 
down;  thus  giving  themselves  first,  and  then  presented  the 
gold,  which  signified  that  Jesus  was  King;  the  frankincense 
that  he  was  God;  and  the  myrrh,  that  he  was  suffering  man, 
and  must  yield  to  death.  In  return  for  their  gifts  Christ 
gave  them  charity  and  spiritual  riches  in  place  of  gold;  per- 
fect faith  for  their  incense;  and  for  the  myrrh,  truth  and 
meekness  of  spirit.  The  Virgin  gave  them,  as  a  precious 
memorial,  one  of  the  linen  bands  in  which  she  had  wrapped 
the  divine  child. 

Being  warned  in  a  dream,  they  returned  not  to  Herod,  but 
went  by  another  way.  There  is  a  legend  that  their  home- 
ward journey  was  made  in  ships,  and  in  a  commentary  on 
the  Psalms,  of  the  fifth  century,  it  is  said  that  when  Herod 
found  that  they  had  escaped  from  him  in  "ships  of  Tarsus," 
he  burned  all  the  vessels  in  the  port.  But,  however  they 
returned,  the  legend  states  that  the  star  guided  them  to  the 
East  as  it  had  led  them  from  it,  and  they  reached  their  homes 
in  safety.  They  never  again  assumed  their  former  state, 
but  in  imitation  of  their  new  sovereign  they  gave  their  wealth 
to  the  poor,  and  went  about  to  preach  the  new  Gospel  of 
Peace.  There  is  a  tradition  that  after  forty  years,  when  St 
Thomas  went  to  the  Indies,  he  met  there  these  wise  men,  and 
baptized  them;  and  afterward,  as  they  continued  to  preach, 
they  went  among  barbarians  and  were  put  to  death.  Long 
after,  their  remains  were  found,  and  the  Empress  Helena 
had  them  removed  to  Constantinople.  During  the  first 
crusade  they  were  removed  to  Milan,  and  lastly  the  Emperor 
Barbarossa  placed  them  in  the  cathedral  at  Cologne,  where 

35 


TWELFTH-NIGHT  OBSERVANCES 

they  remain  in  a  costly  shrine,  and  have  performed  many 
wonderful  miracles.  The  names  of  these  three  "Kings  of 
Cologne,"  as  they  are  often  called,  are  Jaspar  or  Caspar, 
Melchior,  and  Balthasar.  In  the  pictures  they  are  of  three 
ages:  the  first,  Jaspar,  very  old,  with  gray  beard;  Melchior, 
of  middle  age;  and  Balthasar,  always  young,  and  sometimes 
a  Moor  or  black  man,  to  signify  that  he  was  of  Ethiopia,  and 
that  Christ  came  to  all  races  of  men. 

Chambers,  in  the  "  Book  of  Days,"  enlarges  somewhat  upon 
the  significance  of  the  three  gifts.  According  to  this  author- 
ity, Melchior  presented  the  gold  to  the  infant  Saviour  in 
testimony  of  his  royalty  as  the  promised  King  of  the  Jews; 
Jaspar,  the  frankincense  in  token  of  his  divinity;  and  Bal- 
thasar, the  myrrh  in  allusion  to  the  sorrows  which,  in  the 
humiliating  condition  of  a  man,  our  Redeemer  vouchsafed  to 
take  upon  Him. 

As  far  back  as  the  days  of  King  Alfred,  the  chroniclers 
inform  us,  a  statute  was  enacted  in  relation  to  holidays  by 
virtue  of  which  the  twelve  days  after  the  Nativity  were  made 
festivals.  We  should  expect,  therefore,  to  find  in  English 
history  that  "Twelfth-Night,"  as  the  last  of  these  festivals, 
should  have  many  special  observances  connected  with  it; 
and  such  in  fact  proves  to  be  the  case. 

The  dancers  around  Squire  Raby's  hearth  in  Charles 
Reade's  novel,  called  "Put  Yourself  in  His  Place,"  executing 
a  sword-dance  in  honor  of  King  George,  were  doubtless  per- 
petuating a  custom  even  older  than  Christianity;  but  it  is 
worth  while  to  observe  that  all  the  special  festivities  of  the 
time  have,  in  some  degree,  an  association  with  royalty  and 

36 


TWELFTH-NIGHT  OBSERVANCES 

authoritative  station.  Thus,  the  King  of  the  Bean  was  a 
dignity  recognized  in  the  two  universities  of  England,  as  well 
as  in  the  Inns  of  Court,  and  annually  conferred  upon  the 
lucky  individual  who  found  the  bean  in  the  divided  cake,  on 
"Twelfth-Night,"  and  the  custom  has  existed  for  many  cen- 
turies. "At  court,  in  the  eighth  year  of  Edward  III,  this 
majestic  title  was  conferred  upon  one  of  the  king's  minstrels, 
as  we  find  by  an  entry  in  a  computus  so  dated,  which  states 
that  sixty  shillings  were  given  by  the  king  upon  the  day  of  the 
Epiphany,  to  Rogan,  the  trumpeter,  and  his  associates  the 
court  minstrels,  in  the  name  of  the  King  of  the  Bean." 

Cognate  to  this,  and  celebrated  usually  at  the  same  time, 
was  the  Festival  of  Fools,  when  a  mock  bishop  or  Pope  was 
elected,  who,  attended  by  a  proper  ecclesiastical  court,  attired 
in  ridiculous  dresses,  imitated  the  most  sacred  services  of  the 
Church,  with  every  conceivable  accompaniment  of  profanity 
and  indecency.  In  the  north  of  England  Fool-plow  goes 
about,  —  a  pageant  that  consists  of  a  number  of  sword- 
dancers  dragging  a  plow  about,  with  music,  and  one,  or 
sometimes  two  of  them,  attired  in  very  antic  dress:  as  the 
Bessy  in  the  grotesque  habit  of  an  old  woman,  and  the  Fool 
almost  covered  with  skins,  a  hairy  cap  on  his  head,  and  the 
tail  of  some  animal  hanging  down  his  back.  The  office  of 
one  of  these  characters  is  to  go  about  rattling  a  box  among 
the  spectators  of  the  dance,  to  collect  their  little  donations; 
and  it  is  remarkable  that  in  some  places  where  this  pageant 
is  retained  they  plow  up  the  soil  before  any  house  where  they 
receive  no  reward.  The  pageant  and  the  dance  seem  to  be  a 
composition  of  gleanings  of  several  obsolete  customs  follower' 

37 


TWELFTH-NIGHT  OBSERVANCES 

anciently.  The  Fool  and  the  Bessy  are  plainly  fragments 
of  the  Festival  of  Fools. 

Mr.  Strutt,  from  whose  "  Sports  and  Pastimes  of  the  People 
of  England"  I  have  taken  the  foregoing  story,  adds  that  the 
Fool-plow  was  perhaps  the  Yule-plow;  it  is  also  called  the 
white-plow,  because  the  gallant  young  men  who  compose 
the  pageant  appear  to  be  dressed  in  their  shirts,  without  coats 
or  waistcoats,  upon  which  great  numbers  of  ribbons  folded 
into  roses  are  loosely  stitched. 

The  Wassails,  which  originally  were  a  New  Year's  custom, 
prevailed  in  Cornwall  within  a  century  as  a  "Twelfth-Night" 
observance.  The  wassail  bowl,  a  bowl  of  spiced  ale,  was 
carried  about  by  young  women  from  door  to  door  in  their 
several  parishes;  they  sang  a  few  couplets  of  homely  verses 
composed  for  the  occasion,  and  presented  the  liquor  to  the 
inhabitants  of  the  house  where  they  called,  expecting  a  small 
gratuity  in  return.  This  custom  is  supposed  to  be  derived 
from  a  time  of  remote  antiquity,  and  to  have  originated  in  the 
words  of  Rowena,  the  daughter  of  Hengist,  who,  presenting 
a  bowl  of  wine  to  Vortigern,  the  king  of  the  Britons,  said, 
"Woes  Hael,"  or  Health  to  you,  my  lord  the  King! 

The  limited  time  at  my  disposal  prevents  me  from  referring 
to  the  ceremonies  of  the  Yule-tide,  although  some  of  them 
extended  throughout  the  entire  period  of  the  holidays. 

For  this  assembly,  so  largely  descended  from  the  sturdy 
burghers  who  tranquilly  smoked  their  pipes  on  the  stoops  of 
New  Amsterdam  in  the  long  ago,  I  was  desirous  of  describing 
some  peculiarly  Dutch  custom,  but  I  have  been  unable  to 
find  any,  with  perhaps  a  single  exception.  I  hesitate  to  cite 

38 


TWELFTH-NIGHT  OBSERVANCES 

here  so  irreverent  a  work  as  the  "History  of  New-York,"  by 
the  late  Diedrich  Knickerbocker,  but  that  somewhat  untrust- 
worthy author  occasionally  allowed  himself  to  be  led  away 
by  the  truth,  and  the  inherent  probabilities  that  he  did  so  in 
the  passage  I  am  about  to  quote  are  very  strong.  In  speaking 
of  the  usual  assemblage  at  the  Governor's  House,  on  the  first 
day  of  the  year,  he  says:  "On  this  occasion  the  good  Peter 
was  devoutly  observant  of  the  pious  Dutch  rite  of  kissing  the 
women -kind  for  a  Happy  New-Year;  and  it  is  traditional  that 
Antony  the  trumpeter,  who  acted  as  Gentleman  Usher,  took 
toll  of  all  who  were  young  and  handsome  as  they  passed 
through  the  ante-chamber.  This  venerable  custom,  thus 
happily  introduced,  was  followed  with  such  zeal  by  high  and 
low  that  on  New-Year's  Day,  during  the  reign  of  Peter 
Stuyvesant,  New  Amsterdam  was  the  most  thoroughly  be- 
kissed  community  in  all  Christendom." 

Accepting  the  theory  of  heredity  and  reasoning  from  the 
descendants  back  to  the  ancestors,  may  we  not  fairly  and 
reasonably  infer  that  this  pleasing  custom  was  not  allowed 
to  fall  into  desuetude  with  the  day,  but  was  continued  through 
the  remainder  of  the  holidays,  until  it  culminated  on  this 
anniversary  ?  It  appears  to  me  to  be  worthy  of  consideration 
whether  the  members  of  this  Club  should  not,  in  pious  rev- 
erence for  the  memory  of  their  ancestors,  endeavor  to  restore 
so  agreeable  an  observance,  and  again  make  this  a  prominent 
feature  in  their  celebration  of  this  day. 

I  have  outlined  very  briefly  the  customs  of  the  past.  Cui 
bono  do  you  ask  ?  Of  what  advantage  is  it  to  spend  time 
in  the  consideration  of  these  beliefs  and  manners  of  departed 

39 


TWELFTH-NIGHT  OBSERVANCES 

generations  ?  Taking  only  the  purely  material  view,  I  hold 
that  in  this  busy,  active  life,  especially  in  the  turmoil  of  this 
great  city,  with  its  unceasing  pressure  and  drain  upon  brain 
and  muscle,  anything  is  an  advantage  and  a  benefit  which 
will,  if  only  for  a  few  moments,  free  us  from  the  cares  and 
worries  of  every  day,  and  turn  our  minds  into  new  pastures 
of  thought  or  fancy.  It  is  related  of  one  of  the  ancient  philos- 
ophers that  he  would  play  leap-frog  with  his  disciples  until  in 
danger  of  discovery  by  some  one  who  had  not  sufficient 
capacity  for  labor  to  appreciate  the  necessity  for  relaxation; 
and  a  wiser  than  Grecian  sage  has  told  us  that  there  is  a  time 
to  laugh,  as  there  is  a  time  to  work. 

Let  us,  for  this  everning  at  least,  believe  that  the  kindly 
beams  of  the  "Twelfth-Night"  Star  fall  on  us  as  brightly  as 
they  fell  on  the  Three  Kings  of  old,  and  pray  that  they  may 
lead  us,  as  they  led  them,  —  though  it  may  be  through  toils 
and  struggles,  —  to  happiness  and  peace  at  last! 


40 


MYSTERIES  AND   MASQUES 

A  PAPER  READ  BEFORE  THE  ST.  NICHOLAS  CLUB  ON 
TWELFTH-NIGHT,  1892 


MYSTERIES  AND  MASQUES 

Gentlemen  of  the  St.  Nicholas  Club: 

YOUR  House  Committee  has  honored  me  by  an  invitation 
to  read  a  paper  before  you  this  evening,  but  did  not  have 
the  kindness  to  suggest  a  subject,  and  left  me  to  my  own  re- 
sources. On  a  former  occasion  I  related  some  of  the  ancient 
customs  and  observances  incidental  to  the  Twelfth-Night 
celebrations  of  old,  and  in  the  endeavor  to  find  some  cognate 
topic  I  have  decided  to  ask  your  attention  to  a  brief  account  of 
the  stage  representations  which,  beginning  with  the  rude  and 
uncouth  miracles  and  moralities  of  a  remote  antiquity,  devel- 
oped into  the  magnificent  masques  of  the  sixteenth  and  seven- 
teenth centuries,  employing  all  that  was  best  and  finest  in  the 
literature  and  art  of  the  period. 

The  primitive  Christians  were  not  supporters  of  the  drama. 
The  new  religion  was  to  them  something  very  real  and  earnest, 
of  an  absorbing  nature,  and  their  devotion  to  it  and  to  its 
propagation  left  them  but  little  leisure  for  the  amusements 
and  relaxations  of  life.  Believing  in  all  sincerity  that  they 
were  called  upon  to  save  a  perishing  world,  which  could  be 
brought  to  future  happiness  only  through  the  glad  tidings 
which  they  preached,  and  believing  equally  that  the  end  of 
all  things  was  near  at  hand,  the  work  to  be  done  was  too 

43 


MYSTERIES  AND  MASQUES 


great,  and  the  time  to  work  in  too  short,  to  permit  of  any 
waste  of  opportunity  or  any  indulgence  in  leisure.  Perhaps, 
too,  the  fact  that  so  many  of  them  were  compelled  to  be 
prominent  actors  in  the  festivities  of  the  period,  in  roles  of 
a  most  depressing  and  unpleasant  character,  had  the  not 
unnatural  effect  of  weakening  their  taste  for  spectacular 
performances. 

So  to  the  extent  of  their  influence  the  drama  languished, 
and  when  they  came  into  power,  and  in  the  fourth  century 
not  only  refused  the  sacraments  of  the  Church  to  all  actors 
and  mountebanks,  but  excommunicated  all  who  went  to  the 
theatre  on  Sundays  and  other  holidays  instead  of  attending 
divine  service,  theatrical  representations  fell  for  the  time  into 
utter  disrepute  and  then  into  abeyance.  With  a  natural  result 
—  the  average  man  is  not  so  constituted  that  he  can  live  always 
on  the  high  plane  of  preparation  for  a  future  state,  in  which 
the  spirit  only  is  to  survive  and  the  body  with  its  passions  and 
desires  be  utterly  non-existent.  He  must  have  some  con- 
cession made  to  his  longing  for  entertainment  in  this  world; 
and  in  an  ignorant  age,  when  the  vast  majority  of  mankind 
had  but  little  to  vary  the  dull  monotony  of  their  lives,  when 
there  was  for  the  great  mass  no  literature,  no  art,  no  music, 
no  culture,  the  necessity  for  amusement  became  imperative, 
and  in  the  absence  of  theatres  and  gladiatorial  shows,  min- 
strels, jongleurs,  mountebanks,  traveling  performers  of  all 
kinds  began  to  appear  in  response  to  the  demand.  Quick 
to  appreciate  the  position,  the  clergy  accommodated  them- 
selves to  circumstances,  and  even  in  the  fifth  century  increased 
the  attraction  of  public  worship  on  special  occasions  by  living 

44 


MYSTERIES  AND  MASQUES 


pictures  and  songs  illustrating  the  narrative  of  the  Gospel. 
This  gradually  developed  until  in  the  tenth  century,  on  the 
great  ecclesiastical  festivals,  it  was  customary  to  perform  the 
offices  of  the  Shepherds,  the  Innocents,  the  Holy  Sepulchre, 
etc.,  and  in  France,  in  the  eleventh  century,  short  Latin  texts 
were  written  for  these  liturgical  mysteries,  including  passages 
from  the  popular  legend  of  St.  Nicholas  as  well  as  from  the 
Scriptural  story. 

Three  Latin  miracles  written  early  in  the  twelfth  century 
by  Hilarius,  a  disciple  of  Abelard,  are  extant;  the  subjects 
are,  the  raising  of  Lazarus,  the  life  of  St.  Nicholas,  and  the 
history  of  Daniel. 

I  should  have  been  very  glad  to  have  described  the  miracle 
of  the  life  of  St.  Nicholas,  but  I  have  been  unable  to  find  a 
copy  of  it.  I  think  it  fair  to  assume  that  it  depicted  the  good 
Saint  in  his  two  great  acts  of  throwing  purses  through  the 
window  of  the  impoverished  nobleman,  to  enable  him  to 
dower  his  portionless  daughters,  and  of  resurrecting  the 
pickled  children  from  the  pork-barrel  of  the  wicked  landlord. 
He  was  pre-eminently  the  Saint  of  serfdom,  of  maidens  and 
scholars,  travelers  and  children,  mariners  and  all  who  were 
downtrodden  and  oppressed.  Mrs.  Jameson,  in  her  "Sacred 
and  Legendary  Art,"  says  that,  "While  Knighthood  had  its 
St.  George,  Serfhood  had  its  St.  Nicholas.  He  was  emphat- 
ically the  Saint  of  the  people;  the  bourgeois  Saint,  invoked 
by  the  peaceable  citizen,  by  the  laborer  who  toiled  for  his 
daily  bread,  by  the  merchant  who  traded  from  shore  to  shore, 
by  the  mariner  struggling  with  the  stormy  ocean.  He  was 
the  protector  of  the  weak  against  the  strong,  of  the  poor  against 

45 


MYSTERIES  AND  MASQUES 


the  rich,  of  the  captive,  the  prisoner,  the  slave;  he  was  the 
guardian  of  young  marriageable  maidens,  of  schoolboys, 
and  especially  of  the  orphan  poor.  In  Russia,  Greece,  and 
throughout  all  Catholic  Europe,  children  are  still  taught 
to  reverence  St.  Nicholas,  and  to  consider  themselves  as 
placed  under  his  peculiar  care;  'if  they  are  good,  docile,  and 
attentive  to  their  studies,  St.  Nicholas,  on  the  eve  of  his 
festival,  will  graciously  fill  their  cap  or  their  stocking  with 
dainties,  while  he  has  as  certainly  a  rod  in  pickle  for  the  idle 
and  unruly.'" 

While  he  was  regarded  as  one  to  be  especially  invoked  in 
time  of  peril  by  thieves,  he  appears  to  have  been  esteemed 
by  them  as  their  especial  patron,  and  the  expression  "clerks 
of  St.  Nicholas"  was  applied  to  them  by  common  consent. 
In  the  early  times,  when  every  noble  was  a  cruel  oppressor, 
and  every  serf  felt  himself  justified  in  foro  conscientice  in  re- 
dressing what  he  felt  to  be  injustice  by  every  means  in  his 
power,  the  thief  was  a  champion  of  the  rights  of  his  class, 
and  no  doubt  thought  himself  entitled  to  the  protection  of  the 
one  who  had  ever  been  the  champion  of  the  weak  against  the 
strong.  It  may  well  be  also  that  the  thief  recalled  the  action 
of  St.  Nicholas  at  his  episcopal  seat  of  Myra  when  he  took 
grain  from  the  Government  ships  on  their  way  to  Alexandria, 
to  feed  his  starving  people,  and  felt  entitled  to  his  sympathy 
in  robbing  the  rich,  if  after  doing  so  he  divided  his  spoil  with 
the  poor.  It  is  hard  to  have  to  acknowledge  that  the  good 
Bishop  was  in  fact  only  the  ante-type  of  the  later  Robin 
Hood,  but  the  legends  attached  to  his  name  compel  me  to  the 
conclusion  that  such  was  really  the  case. 

46 


MYSTERIES  AND  MASQUES 


In  those  early  days,  the  stage  on  which  these  representa- 
tions were  given  was  so  constructed  that  it  could  be  moved 
from  place  to  place.  As  described  by  Strutt  in  his  "  Manners 
and  Customs  of  the  English,"  it  consisted  of  three  several 
platforms  or  stages,  raised  one  above  another.  "On  the 
uppermost  sat  the  Pater  Ccelestis,  surrounded  with  his  angels : 
on  the  second  appeared  the  holy  Saints  and  glorified  men; 
and  the  last  and  lowest  was  occupied  by  mere  men  who  had 
not  yet  passed  from  this  transitory  life  to  the  regions  of 
eternity.  On  one  side  of  this  lowest  platform  was  the  resem- 
blance of  a  dark  pitchy  cavern  from  whence  issued  appear- 
ance of  fire  and  flames;  and,  when  it  was  necessary,  the 
audience  were  treated  with  hideous  yellings  and  noises  as 
imitative  of  the  howlings  and  cries  of  the  wretched  souls 
tormented  by  the  relentless  demons.  From  this  yawning 
cave  the  devils  themselves  constantly  ascended  to  delight  and 
instruct  the  spectators;  to  delight,  because  they  were  usually 
the  greatest  jesters  and  buffoons  that  then  appeared;  and  to 
instruct,  for  that  they  treated  the  wretched  mortals  who  were 
delivered  to  them  with  the  utmost  cruelty,  warning  thereby 
all  men  carefully  to  avoid  falling  into  the  clutches  of  such 
hardened  and  remorseless  spirits."  A  realistic  picture  of  an 
intensely  realistic  age,  when  little  or  nothing  was  left  to  the 
imagination,  and  everything  which  it  was  intended  the  spec- 
tators should  comprehend  was  presented  to  them  with  the 
utmost  directness  and  simplicity.  Disraeli  in  his  "Curi- 
osities of  Literature"  mentions  a  play  acted  in  one  of  the 
principal  cities  of  England,  under  the  direction  of  the  trading 
companies  of  the  city,  before  a  numerous  assemblage  of  both 

47 


MYSTERIES  AND  MASQUES 


sexes,  wherein  Adam  and  Eve  appeared  on  the  stage  entirely 
naked,  performing  their  whole  part  in  the  representation  of 
Eden,  to  the  serpent's  temptation,  to  the  eating  of  the  forbid- 
den fruit,  the  perceiving  of  and  conversing  about  their  naked- 
ness, and  to  the  supplying  of  fig  leaves  to  cover  it. 

The  most  flourishing  period  of  these  plays  was  when  they 
were  presented  by  the  trading  companies  of  the  different 
cities,  and  of  these  the  most  important  in  England  were  the 
performances  in  Chester  and  Coventry.  Of  the  former,  the 
fullest  accounts  have  been  preserved.  They  were  exhibited 
as  early  as  1268,  continuing  with  few  interruptions  until 
1577,  and  consisted  of  twenty-four  dramas  which  were  repre- 
sented from  Whit-Monday  until  the  following  Wednesday. 
Among  the  subjects  are,  "The  Fall  of  Lucifer,"  performed 
by  the  Tanners;  "The  Creation,"  by  the  Drapers;  "The 
Deluge,"  by  the  Dyers;  "Abraham,  Melchizedek  and  Lot," 
by  the  Barbers  and  Wax-chandlers;  "Moses,  Balak  and 
Balaam,"  by  the  Hatters  and  Linen-drapers;  "The  Killing 
of  the  Innocents,"  by  the  Goldsmiths;  "The  Descent  into 
Hell,"  by  the  Cooks;  "The  Ascension,"  by  the  Tailors; 
"Antichrist,"  by  the  Dyers;  and  "The  Day  of  Judgment," 
by  the  Websters  or  Weavers.  According  to  a  description 
written  toward  the  close  of  the  sixteenth  century,  "Every 
company  had  his  pageant,  which  pageants  were  a  high  scaffold 
with  two  rooms,  a  higher  and  a  lower,  upon  four  wheels.  In 
the  lower  they  appareled  themselves,  and  in  the  higher  they 
played,  being  all  open  at  the  top  that  all  beholders  might  hear 
and  see  them.  The  places  where  they  played  were  in  every 
street.  They  began  first  at  the  Abbey  gates,  and  when  the 

48 


MYSTERIES  AND  MASQUES 


first  pageant  was  played  it  was  wheeled  to  the  high  Cross 
before  the  Mayor  and  so  to  every  street,  and  so  every  street 
had  a  pageant  playing  before  them  at  one  time  until  all  the 
pageants  appointed  for  the  day  were  played;  and  when  one 
pageant  was  near  ended,  word  was  brought  from  street  to 
street,  that  so  they  might  come  in  place  thereof  exceedingly 
orderly,  and  all  the  streets  have  their  pageants  afore  them  all 
at  one  time  playing  together;  to  see  which  plays  was  great 
resort,  and  also  scaffolds  and  stages  made  in  the  streets  in 
those  places  where  they  determined  to  play  their  pageants." 

These  pageants  received  different  names,  according  to  the 
subjects  represented.  Thus  the  "Mysteries,"  so  called,  deal 
with  Scriptural  events  only,  and  of  this  class  is  the  "Passion 
Play,"  performed  decennially  at  Ober-Ammergau,  the  best- 
known  survival  of  these  mediaeval  customs.  The  "  Miracles  " 
were  strictly  concerned  with  the  legends  of  the  Saints  of  the 
Church,  and  the  "Moralities"  were  where  the  characters 
represented  feigned  or  allegorical  personages.  Disraeli  gives 
an  account  of  one  very  old  one,  entitled  "The  Condemnation 
of  Feasts,  to  the  Praise  of  Diet  and  Sobriety  for  the  benefit 
of  the  Human  Body";  a  subject  of  much  importance  to  all  of 
us  even  at  the  present  time.  Toward  the  close  is  a  trial  be- 
tween Feasting  and  Supper.  They  are  summoned  before 
Experience,  the  Lord  Chief  Justice.  Feasting  and  Supper 
are  accused  of  having  murdered  four  persons  by  force  of 
gorging  them.  Experience  condemns  Feasting  to  the  gallows, 
and  his  executioner  is  Diet.  Feasting  asks  for  a  father  con- 
fessor, and  makes  a  public  confession  of  so  many  crimes, 
such  numerous  convulsions,  apoplexies,  headaches,  and 

49 


MYSTERIES  AND  MASQUES 


stomach  qualms,  etc.,  which  he  has  occasioned,  that  his 
executioner,  Diet,  in  a  rage  stops  his  mouth,  puts  the  cord 
about  his  neck  and  strangles  him.  Supper  is  only  condemned 
to  load  his  hands  with  a  certain  quantity  of  lead,  to  hinder 
him  from  putting  too  many  dishes  on  the  table;  he  is  also 
bound  over  to  remain  at  the  distance  of  six  hours'  walking 
from  Dinner,  upon  pain  of  death.  Supper  felicitates  himself 
upon  his  escape,  and  swears  to  observe  the  mitigated  sentence. 

At  the  Council  of  Constance,  in  the  year  1417,  the  English 
fathers  gave  a  mystery  of  "The  Massacre  of  the  Holy  Inno- 
cents." In  this  play  a  low  buffoon  was  introduced,  desiring 
of  his  lord  to  be  dubbed  a  knight,  that  he  might  be  properly 
qualified  to  go  on  the  adventure  of  killing  the  mothers  of  the 
children  of  Bethlehem,  which  was  treated  with  the  most 
ridiculous  levity.  The  good  women  of  Bethlehem  attacked 
the  knight  errant  with  their  spinning-wheels,  broke  his  head 
with  their  distaffs,  abused  him  as  a  coward  and  disgrace  to 
chivalry,  and  sent  him  home  to  Herod  as  a  recreant  cham- 
pion, with  much  ignominy. 

From  these  representations,  slowly  progressing  and  im- 
proving through  the  ages,  came  the  Masques,  which  reached 
their  highest  development  during  the  first  half  of  the  seven- 
teenth century.  I  think  that  the  most  of  us  form  our  idea 
of  what  we  know  of  the  drama  of  that  period  from  our  asso- 
ciations with  Shakspeare  and  the  Globe  Theatre,  and  because 
we  have  read  that  there  the  scene  was  indicated  by  putting 
up  a  sign  reading  that  "This  is  a  castle,"  or  "This  is  a  blasted 
heath,"  we  infer  that  this  was  the  highest  point  which  dra- 
matic art  had  then  attained.  But  this  conception,  so  gen- 

50 


MYSTERIES  AND  MASQUES 


erally  entertained,  utterly  ignores  what  Disraeli  terms  the 
most  gorgeous,  the  most  fascinating,  and  the  most  poetical 
of  dramatic  amusements,  which  combined  all  that  was  ex- 
quisite in  the  imitative  arts  of  poetry,  painting,  music,  song, 
dancing,  and  machinery  at  a  period  when  the  public  theatre 
was  in  its  rude  infancy.  Says  Gifford,  in  his  "Memoirs  of 
Ben  Jonson":  "The  Masque,  as  it  attained  its  highest  degree 
of  excellence,  admitted  of  dialogue,  singing,  and  dancing; 
these  were  not  independent  of  one  another,  but  combined, 
by  the  introduction  of  some  ingenious  fable,  into  an  har- 
monious whole.  When  the  plan  was  formed,  the  aid  of  the 
sister-arts  was  called  in;  for  the  essence  of  the  Masque  was 
pomp  and  glory.  Movable  scenery  of  the  most  costly  and 
splendid  kind  was  lavished  on  the  Masque;  the  most  cele- 
brated Masters  were  employed  on  the  songs  and  dances;  and 
all  that  the  kingdom  afforded  of  vocal  and  instrumental  ex- 
cellence was  employed  to  embellish  the  exhibition."  Thus 
magnificently  constructed,  the  Masque  was  not  committed 
to  ordinary  performers.  It  was  composed,  as  Lord  Bacon 
says,  for  princes,  and  by  princes  it  was  played.  Of  these 
Masques,  the  skill  with  which  their  ornaments  were  designed, 
and  the  inexpressible  grace  with  which  they  were  executed, 
appear  to  have  left  a  vivid  impression  on  the  mind  of  Jonson. 
His  genius  awakes  at  once,  and  all  his  faculties  attune  to 
sprightliness  and  pleasure.  He  makes  his  appearance  like 
his  own  Delight,  accompanied  with  Grace,  Love,  Harmony, 
Revel,  Sport,  and  Laughter. 

"  But  in  what  was  the  taste  of  the  times  wretched  ?     In 
poetry,    painting,    architecture,    they    have    not    since   been 

51 


MYSTERIES  AND  MASQUES 


equaled;  and  it  ill  becomes  us  to  arraign  the  taste  of  a  period 
which  possessed  a  cluster  of  writers  of  which  the  meanest 
would  now  be  esteemed  a  prodigy."  Indeed,  I  find  it  very 
easy  to  believe  that  a  spectacular  representation  produced 
without  any  reference  to  the  cost,  for  which  Ben  Jonson 
wrote  the  words,  Henry  Lawes  composed  the  music,  and 
Inigo  Jones  designed  the  machinery,  would  compare  very 
favorably  with  the  Black  Crooks  and  Puppen-Fees  of  to-day. 
It  seems  to  be  beyond  doubt  that  the  movable  scenery  formed 
as  perfect  an  illusion  as  any  that  our  own  age,  with  all  its 
perfection  in  decoration,  has  attained,  and  it  is  equally  be- 
yond doubt  that  this  result  was  exceedingly  expensive.  "The 
Masque  of  Blackness,"  by  Jonson  and  Jones,  performed  at 
Whitehall  on  Twelfth-Night,  1603,  cost  what  would  now  be 
nearly  ten  thousand  pounds  sterling,  and  the  Earl  of  Strafford 
in  his  "Letters"  remarks,  "There  are  two  Masques  in  hand, 
the  first  of  the  Inns  of  Court,  which  is  to  be  presented  on 
Candlemas  Day;  the  other,  the  King  presents  the  Queen 
with  on  Shrove  Tuesday  at  night;  high  expenses,  they  talk 
of  twenty  thousand  pounds  sterling  that  it  will  cost  the  men 
of  the  law";  a  very  much  larger  sum  three  and  a  half  cen- 
turies ago  than  it  is  to-day,  but  which  even  now  would  seem 
to  poor  lawyers  a  great  deal  of  money  to  expend  upon  an 
evening's  entertainment. 

To  show  the  elaborate  character  of  the  scenery  in  these 
performances,  permit  me  to  describe  the  "Lord's  Masque," 
presented  on  the  occasion  of  the  marriage  of  the  daughter  of 
James  I  to  the  Elector  Palatine  in  1613.  The  scene  was 
divided  into  two  parts,  from  the  roof  to  the  floor;  the  lower 

52 


MYSTERIES  AND  MASQUES 


part  being  first  discovered,  there  appeared  a  wood  in  per- 
spective, the  innermost  part  being  of  "releeve  or  whole 
round,"  the  rest  painted.  On  the  left  a  cave,  and  on  the 
right  a  thicket  from  which  issued  Orpheus.  At  the  back 
part  of  the  scene,  at  the  sudden  fall  of  a  curtain,  the  upper 
part  broke  on  the  spectators,  a  heaven  of  clouds  of  all  hues; 
the  stars  suddenly  vanished,  the  clouds  dispersed;  an  element 
of  artificial  fire  played  about  the  house  of  Prometheus;  a 
bright  and  transparent  cloud,  reaching  from  the  heavens  to 
the  earth,  whence  the  eight  Masques  descended  with  the 
music  of  a  full  song;  and  at  the  end  of  their  descent  the  cloud 
broke  in  twain,  and  one  part  of  it,  as  with  a  wind,  was  blown 
athwart  the  scene.  While  this  cloud  was  vanishing,  the 
wood,  being  the  under  part  of  the  scene,  was  insensibly 
changing;  a  perspective  view  opened,  with  porticos  on  each 
side  and  female  statues  of  silver,  accompanied  with  orna- 
ments of  architecture,  filling  the  end  of  the  house  of  Pro- 
metheus, and  seeming  all  of  goldsmiths'  work.  The  women 
of  Prometheus  descended  from  their  niches,  till  the  anger 
of  Jupiter  turned  them  again  into  statues.  It  is  evident,  too, 
that  the  size  of  the  proscenium  or  stage  accorded  with  the 
magnificence  of  the  scene;  for  choruses  are  described  and 
"changeable  conveyances  of  the  song,"  in  manner  of  an 
echo  performed  by  more  than  forty  different  voices  and  in- 
struments in  various  parts  of  the  scene.  The  architectural 
decorations  were  the  pride  of  Inigo  Jones;  such  could  not  be 
trivial. 

Masques  were  frequently  the  private   theatricals   of   the 
families  of  the  nobility,  performed  by  the  ladies  and  gentle- 

53 


MYSTERIES  AND  MASQUES 


men  at  their  seats,  and  were  splendidly  gotten  up  on  certain 
occasions,  such  as  the  celebration  of  nuptials,  or  in  compli- 
ment to  some  great  visitor.  The  Masque  of  "Comus"  was 
composed  by  Milton,  to  celebrate  the  creation  of  Charles  I 
as  Prince  of  Wales,  in  1616,  after  the  death  of  his  elder 
brother,  Prince  Henry.  But  the  very  perfection  and  mag- 
nificence of  those  performances  ultimately  caused  their  ruin, 
through  the  enormous  expense  involved.  The  youthful  days 
of  Louis  XTV  raised  them  to  a  height  of  costly  luxuriance, 
to  sink  them  ever  after  in  oblivion;  they  ended  in  gaudy 
dresses  and  expensive  machinery,  but  poetry  was  not  asso- 
ciated with  them.  To  conclude  with  the  quotation  from 
Jonson  with  which  Disraeli,  from  whose  writings  I  have 
mainly  taken  this  description,  ends  his  sketch: 

"The  glory  of  all  these  solemnities  had  perished  like  a 
blaze,  and  gone  out  in  the  beholders'  eyes:  so  short  lived  are 
the  bodies  of  all  things  in  comparison  of  their  souls." 


r 


54 


THE   SETTLEMENT  OF  NEW 
AMSTERDAM 

A  PAPER  READ  BEFORE  THE  ST.  NICHOLAS  CLUB  ON 
JANUARY  6TH,   1893 


THE  SETTLEMENT  OF  NEW  AMSTERDAM 

Mr.  President  and  Gentlemen  of  the  St.  Nicholas  Club: 

INVITED  by  your  Committee  to  read  before  you  a  paper 
on  some  subject  connected  with  the  city  of  New  York,  it 
seemed  to  me  only  natural  and  proper  to  go  back  to  those 
early  days  when  our  patron  Saint  was  also  the  tutelary 
genius  of  this  metropolis,  and  to  describe  the  circumstances 
which  placed  him  in  that  position,  as  well  as  those  which 
withdrew  from  us  his  protecting  care. 

At  the  beginning  of  the  seventeenth  century,  Holland  was 
the  mistress  of  the  seas.  Her  successful  revolt  against  the 
oppression  and  tyranny  of  Spain,  and  her  long  maritime 
warfare  with  that  power,  had  made  her  sons  skilful  and 
hardy  seamen,  so  that  on  the  achievement  of  her  indepen- 
dence she  controlled  the  commerce  of  the  world.  Her 
navies  swept  the  seas  as  clean  then  as  they  did  some  fifty 
years  later,  when  stout  Van  Tromp  sailed  through  the  English 
Channel  with  a  broom  nailed  to  his  mast-head,  a  token  at 
once  of  triumph  and  derision.  The  East  India  Company 
conquered  islands  and  kingdoms  in  Asia.  With  a  fleet  of 
two  hundred  ships  they  carried  on  trade  with  China  and 
Japan,  they  brought  to  Europe  the  productions  of  the  Spice 
Islands  and  the  gold,  the  pearls  and  the  jewels  of  the  East. 

57 


THE  SETTLEMENT  OF  NEW  AMSTERDAM 

"Amsterdam,"  says  Bancroft,  "was  the  centre  of  the  com- 
merce of  Europe.  The  sea  not  only  bathed  its  walls  but 
entered  among  its  streets,  and  the  fleets  of  its  merchantmen, 
as  seen  from  the  ramparts,  lay  so  crowded  together  that 
vision  was  interrupted  by  the  thick  forests  of  masts  and 
yards.  War  for  liberty  became  unexpectedly  a  guaranty  of 
opulence.  Holland  gained  the  commerce  of  Spain  by  its 
maritime  force:  it  secured  the  wealth  of  the  Indies  by  traffic. 
Lisbon  and  Antwerp  were  despoiled:  Amsterdam,  the  depot 
of  the  merchandize  of  Europe  and  of  the  East,  was  esteemed 
beyond  dispute  the  first  commercial  city  of  the  world." 

It  was  an  age  of  discovery,  of  enterprise,  and  of  coloniza- 
tion, and  the  success  of  the  East  India  Company  stimulated 
the  good  burghers  of  Amsterdam  to  turn  their  endeavors 
towards  the  Western  Hemisphere,  and  so  it  came  to  pass 
that  Hendrik  Hudson,  who  had  already  sailed  on  two  voyages 
of  discovery  under  the  English  flag,  was  engaged  by  them 
to  hazard  himself  again.  On  the  4th  of  April,  1609,  he  left 
that  port  in  the  Haljmoon,  a  little  boat  of  only  eighty  tons 
burden,  and  after  vainly  seeking  the  northwest  passage  by 
Nova  Zembla,  where  fields  of  ice  barred  his  way,  he  passed 
beyond  Greenland  and  Newfoundland,  by  Cape  Cod,  which 
he  named  New  Holland,  as  far  south  as  the  Bay  of  Virginia; 
and  turning  again  to  the  north  he  entered  and  examined 
Delaware  Bay,  and  on  the  3d  of  September  anchored  within 
Sandy  Hook.  Delaying  there  a  week,  he  passed  through 
the  Narrows,  and  at  the  mouth  of  the  river  which  now  bears 
his  name  anchored  in  a  harbor  which  he  pronounced  to  be 
very  good  for  all  winds. 

58 


THE  SETTLEMENT  OF  NEW  AMSTERDAM 

After  so  long  a  voyage,  it  was  but  natural  that  the  venture- 
some explorers  should  wish  to  set  their  feet  on  the  fair  land 
which  they  saw  before  them,  and  Hudson  accordingly  had  a 
boat  manned  and  rowed  to  the  shore.  Of  what  happened 
on  his  arrival,  the  best  account  is  the  Indian  tradition  which 
has  been  preserved  in  Heckwelder's  History. 

After  describing  the  approach  of  the  big  house  floating  on 
the  sea,  and  the  assemblage  of  the  natives  to  see  what  it 
might  portend,  it  goes  on  to  say  that  the  house,  or  large  canoe, 
stopped,  a  smaller  canoe  came  ashore  having,  among  others, 
a  red  man  in  it.  This  was  probably  Hudson  clothed  in  the 
uniform  he  had  worn  in  the  English  service.  "The  chiefs 
and  wise  men  form  a  circle,  into  which  the  red  man  and  two 
attendants  approach.  He  salutes  them  with  friendly  coun- 
tenance, and  they  return  the  salute  after  their  manner.  They 
are  amazed  at  their  color  and  dress,  particularly  at  him  who, 
glittering  in  red,  wore  something  (perhaps  lace  and  buttons) 
they  could  not  comprehend.  He  must  be  the  great  Manitto, 
they  thought,  but  why  should  he  have  a  white  skin.  A  large 
elegant  gourd  is  brought  by  one  of  the  Manitto 's  servants, 
from  which  a  substance  is  poured  into  a  small  cup  or  glass, 
and  handed  to  the  Manitto.  He  drinks,  has  the  glass  refilled, 
and  handed  to  the  chief  near  him.  He  takes  it,  smells  it,  and 
passes  it  to  the  next,  who  does  the  same.  The  glass  in 
this  manner  is  passed  around  the  circle,  and  is  about  to  be 
returned  to  the  red-clothed  man,  when  one  of  them,  a  great 
warrior,  harangues  them  on  the  impropriety  of  returning  the 
cup  unemptied.  It  was  handed  to  them,  he  said,  by  the 
Manitto,  to  drink  out  of  it  as  he  had.  To  follow  his  example 

59 


THE  SETTLEMENT  OF  NEW  AMSTERDAM 

would  please  him,  to  reject  it  might  provoke  his  wrath.  And 
if  no  one  else  would  he  would  drink  it  himself,  let  what  would 
follow,  for  it  were  better  for  one  even  to  die,  than  a  whole 
nation  to  be  destroyed.  He  then  took  the  glass,  smelled  it, 
again  addressed  them,  bidding  adieu,  and  drank  the  con- 
tents. All  eyes  were  now  fixed  on  him.  He  soon  began  to 
stagger.  The  women  cried,  supposing  him  in  fits.  He  rolled 
on  the  ground.  They  bemoan  his  fate.  They  thought  him 
dying.  He  fell  asleep.  They  at  first  thought  he  had  ex- 
pired, but  soon  perceived  he  still  breathed.  He  awoke, 
jumped  up,  and  declared  he  never  felt  more  happy.  He 
asked  for  more,  and  the  whole  assembly,  imitating  him, 
became  intoxicated."  This  ingenious  account  of  the  first 
visit  of  an  European  to  these  shores  certainly  gives  at  least 
plausibility  to  a  definition  propounded  by  the  late  J.  W. 
Moulton  in  his  "New  York  in  1673."  Manhattan,  he  says, 
was  named  by  the  Indians  Man-a-hatta,  to  denote,  according 
to  the  Lenni-Lenapi,  or  Delawares,  not  only  the  landing- 
place  of  the  discoverer,  but  the  effect  of  the  "mad-waters," 
which  he  gave  to  the  natives  on  his  first  interview:  the  literal 
interpretation  of  the  name  being  "the  place  where  we  all 
got  drunk,"  a  name  which  might  well  be  applied  to  the  fair 
city  of  to-day,  by  some  of  the  incautious  victims  of  her  hos- 
pitality. In  the  next  year  (1610),  during  which  Hudson  set 
out  upon  the  voyage  which  was  to  have  for  him  so  tragic  an 
ending,  the  Dutch  sent  vessels  to  open  a  trade  with  the 
natives  for  peltries,  which  soon  became  very  profitable.  In 
1611  the  Little  Fox  and  the  Little  Crane  came  upon  specu- 
lative voyages,  their  owners  bartering  the  trinkets  and  trifles 

60 


THE  SETTLEMENT  OF  NEW  AMSTERDAM 

coveted  by  the  Indians  for  beaver  and  other  skins.  A  few 
huts  were  erected  as  early  as  1613  for  sheltering  the  fur  trade 
and  the  whale  fishery,  which  latter  was  then  of  importance, 
on  the  spot  where  it  was  supposed  Hudson  had  landed,  form- 
ing the  nucleus  of  the  little  village  afterwards  known  as  New 
Amsterdam.  But  even  this  tiny  settlement  was  not  suffered 
to  rest  undisturbed.  The  English  governor  of  Virginia, 
Argall,  returning  from  his  piratical  expedition  against  the 
little  French  Colony  of  Port  Royal,  compelled  the  Dutch 
Governor,  Hendrik  Christiansen,  who  was  powerless  to 
resist,  to  submit  himself  and  his  people  to  the  English  gover- 
nor, and  through  him  to  the  King  of  England.  But  next 
year,  Eelkins,  a  new  governor,  came  out  from  Amsterdam 
with  re-enforcements,  resumed  possession  of  the  Province  and 
defied  the  English.  He  built  a  fort  at  the  southwestern 
extremity  of  the  Island,  where  the  barge  office  and  Battery 
now  are,  and  it  is  to  be  presumed  that  St.  Nicholas  improved 
in  spirits  and  took  courage. 

This  expedition  resulted  from  the  enterprise  of  an  associa- 
tion of  Amsterdam  and  Hoorn  merchants  by  whom  Block 
and  other  explorers  had  been  employed,  who  gave  the  name 
of  New  Netherland  to  the  infant  colony,  and  under  the  title 
of  the  United  New  Netherland  Company  obtained  from 
the  States  General  the  exclusive  right  for  three  years  "to 
visit  and  penetrate  the  said  lands  lying  in  America  between 
new  France  and  Virginia,  whereof  the  coasts  extend  from 
the  fortieth  to  the  forty-fifth  degree  of  latitude,"  that  is,  from 
Delaware  to  Passamaquoddy  Bay. 

But  the  years  passed  by  and  no  colony  worthy  of  the  name 
61 


THE  SETTLEMENT  OF  NEW  AMSTERDAM 

had  been  established.  New  Netherland  was  only  a  collec- 
tion of  trading-posts,  and  when  the  charter  of  the  company 
expired,  the  general  dissatisfaction  with  the  results  of  their 
labor  prevented  its  renewal.  Trading  operations  continued, 
but  no  steps  were  taken  towards  effecting  permanent  settle- 
ments, until  an  old  project  of  a  West  India  Company  was 
revived,  and  a  corporation  under  that  name  was  created  in 
1621,  with  power  not  only  over  New  Netherland,  but  the 
whole  American  coast,  which  at  once  applied  itself  ener- 
getically to  work. 

The  first  party  of  actual  colonists  sent  out  by  the  Company 
sailed  from  Amsterdam  early  in  March,  1623,  in  a  little 
vessel  of  260  tons  burden  called  the  New  Netherland,  and 
commanded  by  Captain  Cornelis  Jacobs  of  Hoorn.  It  con- 
sisted of  thirty  families  of  Protestant  Walloons  from  the 
Spanish  Netherlands,  refugees  from  persecution  on  account 
of  their  religious  belief.  The  course  then  pursued  across  the 
Atlantic  was  to  the  Canary  Islands,  thence  towards  the  Amer- 
ican coast,  until  the  trade  winds  were  gained,  and  the  favor- 
able breezes  so  aided  our  first  immigrants  that  early  in  May 
they  found  themselves  in  the  River  Mauritius,  as  the  Hudson 
was  then  called.  They  at  once  commenced  to  erect  huts  for 
their  immediate  accommodation  on  the  southerly  point  of 
the  Island,  and  the  cattle  which  they  had  brought  with  them 
were  turned  out  upon  Governor's  Island,  it  being  impossible 
with  the  scanty  resources  at  their  command  to  confine  them 
within  safe  limits  near  themselves,  and  highly  hazardous  to 
allow  them  to  stroll  out  into  the  Indian  neighborhood.  With 
this  party  came  Joris  Jansen  de  Rapelje  and  the  young  woman 

62 


THE  SETTLEMENT  OF  NEW  AMSTERDAM 

who  soon  after  became  his  bride,  from  which  union  resulted, 
on  June  9,  1625,  the  first  born  Christian  daughter  in  the 
colony  of  New  Netherland. 

These  first  settlers  soon  after  removed  to  the  western  shore 
of  Long  Island,  and  their  place  of  residence,  taking  its  name 
from  them,  preserves  to  this  day  the  memory  of  their  arrival 
in  its  title  of  Wallabout  Bay.  But  the  West  India  Company, 
while  largely  absorbed  in  chartering  privateers  to  prey  upon 
Spanish  commerce,  did  not  wholly  neglect  the  immense 
territory  which  had  been  intrusted  to  its  fostering  care.  A 
treaty  of  alliance  having  been  made  between  England  and  the 
United  Netherlands,  it  perceived  that  it  might  proceed  with 
colonization  without  danger  of  further  interference  from  the 
former  power.  It  at  once  entered  upon  the  consideration  of 
a  new  form  of  government  as  well  as  the  discussion  of  plans 
for  inducing  settlers  to  emigrate.  The  first  governor,  Peter 
Minuit,  was  appointed,  who  sailed  from  Amsterdam  in 
December  in  the  ship  Sea-View,  and  arrived  in  Manhattan 
on  the  4th  of  May,  1626. 

His  first  proceeding  was  to  treat  with  the  natives  for  the 
purchase  of  the  soil  on  which  the  new  city  was  to  be  erected, 
and  his  negotiations  resulted  in  the  conveyance  to  him,  and 
his  successors  as  representatives  of  the  Company,  of  the  entire 
Island  of  Manhattan  for  various  trinkets  and  similar  articles 
appealing  strongly  to  the  savage  taste,  estimated  to  be  worth 
about  twenty-four  dollars  of  our  present  currency.  This 
price  has  often  been  quoted  as  a  ridiculously  small  considera- 
tion, but  it  is  to  be  remembered  that  it  was  paid  for  the  land 
alone  in  its  native  state;  not  only  no  buildings  of  importance, 

63 


THE  SETTLEMENT  OF  NEW  AMSTERDAM 

but  no  pavements,  no  sidewalks,  no  sewers,  nay  even  no 
roads,  no  improvements  of  any  character  were  then  in  exist- 
ence. Considering  the  hundreds  of  thousands  of  dollars 
which  have  since  been  expended  in  public  improvements,  to 
say  nothing  of  the  millions  which  individuals  have  converted 
into  brick  and  mortar,  and  considering  further  that  the 
twenty-four  dollars  then  paid  would  to-day,  compounded  at 
six  per  cent  interest,  amount  to  over  one  hundred  and  fifteen 
millions  of  dollars,  I  am  not  sure  but  that  the  honest  old 
Dutchman  was  beguiled  by  the  savages  into  paying  what  was 
really  a  fancy  price  in  the  first  recorded  real  estate  transaction 
on  this  Island. 

The  stream  of  emigration,  once  set  flowing,  continued  to 
swell  in  volume  and  new  settlers  came  over  every  year.  The 
first  dwelling  huts  were  built  mostly  after  the  Indian  fashion, 
with  saplings  and  bark,  with  some  improvements  suggested 
by  the  experience  of  civilization,  such  as  wooden  chimneys 
and  glazed  windows.  Some  of  the  colonists  having  greater 
regard  for  comfort  than  for  outward  show,  constructed  cel- 
lars, which,  being  sided  with  bark,  and  covered  with  thatched 
reeds,  were  sufficiently  warm,  though  deficient  in  light. 

In  the  course  of  a  few  years  the  establishment  of  sawmills 
supplied  timber  for  more  substantial  abodes  and  a  class  of 
buildings  of  one  story  in  height,  with  two  rooms  on  a  floor 
and  a  garret  overhead,  became  the  common  style  of  archi- 
tecture. These  cottages  were  framed  and  clapboarded  and 
the  roofs  thatched,  but  as  yet  the  chimneys  were  made  of 
wood,  from  the  want  of  brick  and  mortar  to  construct  less 
dangerous  flues.  The  houses  were  commonly  surrounded 

64 


THE  SETTLEMENT  OF  NEW  AMSTERDAM 

by  strong  palisades,  as  a  protection  against  the  savages.  The 
interior  of  these  humble  edifices  presented,  as  may  be  sup- 
posed, simply  the  necessary  articles  of  furniture  for  every-day 
purposes.  The  great  chest,  with  its  precious  stores  of  house- 
hold goods,  was  the  most  imposing  article;  chairs  were  sup- 
plied by  stools,  rough  hewn  from  the  forest.  Tables  were 
of  domestic  manufacture;  rough  shelves  formed  the  only 
cupboard.  The  bedstead  was  the  sleeping  bench,  but  upon 
it  the  great  feather-bed  lay  in  state,  and  gave  in  comfort  all 
that  was  wanting  in  display. 

The  second  Dutch  Governor,  Wouter  Van  Twiller,  arrived, 
in  April  of  1633,  in  the  Salt  Mountain,  a  vessel  of  two  hun- 
dred and  eighty  tons  burden,  manned  by  fifty-two  men  and 
carrying  twenty  guns.  With  him  came  the  first  detachment 
of  troops  sent  to  this  country,  consisting  of  one  hundred  and 
four  men.  With  him  also,  or  about  the  same  time,  came  the 
first  Dutch  clergyman,  the  well-known  Dominie  Bogardus. 

As  a  governor,  Van  Twiller  was  not  a  success.  His  vacil- 
lation of  character,  which  gained  him  the  soubriquet  of  the 
Doubter,  and  that  fatality  which  seems  to  impel  weak  men 
to  be  obstinate  at  the  wrong  tune  and  place,  involved  him 
in  constant  difficulties.  Harassed  by  the  English  on  the 
east,  and  the  Swedes  on  the  south,  both  of  whom  were  con- 
stantly encroaching  on  the  territories  which  he  was  bound  to 
protect,  and  tormented  by  frequent  struggles  with  the  Indians, 
he  found  his  task  one  of  unceasing  annoyance.  Besides  all 
these  external  troubles,  the  government  of  the  colony  itself 
required  qualities  of  statesmanship  and  diplomacy  of  a  high 
order.  The  States  General  had  adopted  a  charter  of  privi- 

65 


THE  SETTLEMENT  OF  NEW  AMSTERDAM 

leges  for  patrons  who  desired  to  plant  colonies,  which  was 
analogous  to  the  political  institutions  of  the  Dutch  of  that 
day.  While  as  much  land  as  he  could  cultivate  was  prom- 
ised to  every  one  who  would  emigrate  on  his  own  account,  it 
was  not  expected  that  the  peasants  who  enjoyed  no  political 
franchises,  and  had  consequently  no  idea  of  independent 
action,  would  of  themselves  undertake  the  long  and  expen- 
sive journey.  The  effort  was  therefore  made  to  induce  men 
of  a  higher  class  to  take  the  initiative,  and  he  who  within  four 
years  would  plant  a  colony  of  fifty  souls  became  Lord  of  the 
Manor,  or  Patroon,  possessing  absolutely  the  lands  he  might 
colonize,  which  might  extend  sixteen  miles  in  length,  or,  if 
they  lay  upon  a  river,  eight  miles  on  each  bank,  extending 
back  indefinitely  into  the  interior.  As  a  consequence  the 
directors  and  agents  of  the  Company  themselves  appro- 
priated the  most  valuable  portions  of  the  territory,  and  ac- 
quired title  to  all  the  important  points  where  the  natives  came 
to  traffic.  The  Company  desired  to  reserve  to  itself  this 
trade,  and  constant  collisions  between  the  feudal  possessors 
and  the  central  government  resulted.  So  it  must  have  been 
as  much  of  a  relief  to  Van  Twiller  as  to  every  one  else  con- 
cerned when  on  the  28th  of  March,  1638,  the  good  ship 
Herring  came  into  port  bringing  a  new  governor  in  the 
person  of  William  Kieft.  This,  for  the  unfortunate  colo- 
nists, was  exchanging  King  Log  for  King  Stork.  Not  long 
after  his  arrival  a  Hollander  was  murdered  by  the  son  of 
a  chief,  who  felt  himself  defrauded  and  robbed,  one  of  a 
long  series  of  similar  crimes  caused  by  inhumanity  on  the 
one  side,  and  revenge  on  the  other,  and  Kieft  inexorably 

66 


THE  SETTLEMENT  OF  NEW  AMSTERDAM 

demanded  the  surrender  of  the  murderer.  A  deputation  of 
the  river  chieftains  hastened  to  deplore  the  circumstance,  and, 
as  they  could  not  deliver  up  the  murderer,  to  offer  to  pay  an 
appropriate  fine  to  the  relatives  of  the  victim.  "You  your- 
selves,"they  added, "are  the  cause  of  this  evil:  you  ought  not 
to  craze  the  young  Indians  with  brandy.  Your  own  people, 
when  drunk,  fight  with  knives,  and  do  foolish  things;  and 
you  cannot  prevent  mischief,  till  you  cease  to  sell  strong 
drink  to  the  Indian." 

The  argument  was  true  but  unconvincing.  Taking  ad- 
vantage of  an  attack  by  the  Mohawks  upon  the  Algonquins, 
and  the  appeal  of  the  latter  weaker  race  for  assistance,  the 
soldiers  of  the  fort,  joined  by  freebooters  from  Dutch  pri- 
vateers, and  led  by  a  guide  who  knew  where  to  find  the  re- 
cesses across  the  Hudson  in  which  the  cowering  fugitives  had 
concealed  themselves,  attacked  them  in  the  stillness  of  a  dark 
winter's  night,  and  killed  nearly  a  hundred  of  the  helpless 
savages  without  regard  to  sex  or  age.  The  exultation  which 
the  governor  displayed  to  his  returning  troops  was  short- 
lived. The  news  of  the  massacre  spread  rapidly  and  excited 
a  bitter  feeling  of  revenge,  whose  effects  were  soon  exhibited 
in  villages  laid  waste,  farms  destroyed,  murder  on  every  side, 
and  a  complete  demoralization  of  the  settlers,  of  whom  all 
who  could  fled  terrified  back  to  Holland.  The  war  continued 
for  two  years,  until  both  parties  were  wearied  and  exhausted, 
and  peace  was  concluded  in  a  solemn  conclave  at  the  Battery 
of  the  Sachems  of  New  Jersey,  of  the  River  Indians,  of  the 
Mohicans,  and  of  those  from  Long  Island,  with  the  chiefs  of 
the  Five  Nations  as  witnesses  and  arbitrators,  on  the  one 

67 


THE  SETTLEMENT  OF  NEW  AMSTERDAM 

side,  and  the  governor  and  council  of  New  Netherland,  with 
the  whole  commonalty  of  the  Dutch,  on  the  other.  But  the 
joy  with  which  peace  was  hailed  only  intensified  the  general 
feeling  of  hatred  for  the  governor,  to  whose  barbarous  policy 
so  much  distress  was  due,  and  the  demand  for  his  recall  was 
universal.  About  two  years  after  the  peace  he  sailed  for 
Europe,  but  the  vessel  which  bore  him  was  wrecked  upon  the 
coast  of  Wales,  and  his  infamy  rewarded  with  an  ocean  grave. 

To  whom  succeeded  the  brave  and  honest  Stuyvesant, 
promoted  from  the  position  of  Vice-Director  of  Curacoa,  a 
scholar  of  some  learning  and  a  soldier  of  experience.  Seen 
through  the  mists  that  shroud  that  early  time,  he  looms  up  a 
romantic,  almost  a  grand  character.  He  assumed  his  posi- 
tion on  the  llth  May,  1647,  and  as  he  conciliated  the  natives 
and  succeeded  in  removing  restriction  upon  commerce,  an 
era  of  prosperity  began  to  dawn.  New  settlers  began  to 
pour  in,  and  the  growing  commerce  added  to  the  wealth  and 
prosperity  of  the  city.  A  spirit  of  local  improvement  was 
awakened  among  the  citizens.  By  this  time  many  of  them, 
through  industry  and  frugality,  two  of  the  most  notable 
Dutch  virtues,  had  become  possessed  of  considerable  wealth, 
their  children  had  grown  up  knowing  no  other  scenes  and 
naturally  wishing  to  make  the  most  of  their  position,  and  the 
differences  of  accumulations,  and  consequent  social  position, 
were  beginning  to  produce  their  natural  result. 

It  was  about  the  year  1656  that  this  era  attained  its  cul- 
mination. Several  of  the  merchants  had  at  that  time  erected 
stone  dwelling-houses  and  the  general  style  of  living  had 
considerably  advanced  throughout  all  classes.  The  interior 

68 


THE  SETTLEMENT  OF  NEW  AMSTERDAM 

decorations  of  the  habitations  were  much  improved:  great 
high-post  bedsteads,  with  their  dimity  curtains,  adorned  the 
parlors  of  the  great;  cupboards  of  nut-wood,  imported  from 
the  old  country,  were  to  be  seen  in  some  of  the  principal 
establishments.  Even  silver  plate  was  displayed  in  one  or 
two  instances,  as  evidence  of  increased  prosperity.  In  1657 
Peter  Cornelis  Vanderveen  constructed  a  fine  house  on  the 
present  Pearl  Street,  and  in  1658  Governor  Stuyvesant  erected 
a  large  house  in  the  vicinity  of  the  present  Whitehall  Street, 
the  name  of  which  is  derived  from  the  White  Hall  of  the  Dutch 
governor. 

As  was  but  natural  in  a  young  and  busy  community,  Sunday 
was  the  only  day  of  rest,  and  the  religious  sentiment  of  the 
age  compelled  its  strict  observance.  On  that  day  the  do- 
mestic duties  of  the  week  were  suspended,  and  the  people 
arrayed  themselves  in  their  best  attire  to  attend  the  services 
appropriate  to  the  occasion.  They  were  almost  exclusively 
Calvinists,  and  were  rigid  in  the  performance  of  their  religious 
duties.  The  bell-ringer  and  sexton  was  one  of  the  marked 
personages.  Having  summoned  the  congregation  by  the 
sound  of  the  church  bell,  the  ceremonious  duty  followed  of 
forming  a  procession  of  himself  and  his  assistants  to  carry  in 
the  cushions  of  the  Burgomasters  and  Schepens  from  the 
City  Hall  to  furnish  the  church  pew  appropriated  to  those 
magistrates.  The  Schout  at  the  same  hour  went  his  rounds 
to  observe  that  quiet  was  kept  in  the  streets  during  the  time 
of  service,  and  to  stop  the  games  of  the  negro  ai^d  Indian 
slaves  to  whom  Sunday  was  allowed  for  recreation,  except 
during  church  time.  As  the  church  edifice  was  within  the 

69 


THE  SETTLEMENT  OF  NEW  AMSTERDAM 

walls  of  the  fort,  the  present  Bowling  Green,  then  an  open 
field,  displayed  a  numerous  concourse  of  country  wagons, 
arrayed  in  order,  while  the  horses  were  let  loose  to  graze  on 
the  shady  hillside  which  led  down  to  the  water  near  the  present 
Battery. 

Limitations  of  time  compel  me  to  pass  without  comment  the 
Governor's  wars  with  the  Swedes,  the  Indians,  and  the  Eng- 
lish, and  come  at  once  to  the  date  when  King  Charles  the 
Second,  disregarding  the  rights  and  settlements  of  the  Dutch, 
granted  all  New  Netherland  to  his  brother  James,  Duke  of 
York  and  Albany,  better  known  in  history  as  King  James  the 
Second.  The  patent  passed  the  Great  Seal  on  the  12th  of 
March,  1664,  and  Colonel  Richard  Nichols,  who  had  been 
appointed  governor,  proceeded  with  four  frigates  and  three 
hundred  men  directly  to  Manhattan  for  the  conquest  of  the 
Dutch.  After  having  demanded  recruits  from  Massachu- 
setts, and  taken  on  board  Governor  John  Winthrop  of  Con- 
necticut, the  fleet  approached  the  Narrows,  and  on  August 
28th  anchored  in  Gravesend  Bay. 

It  is  time  to  see  what  capabilities  of  defense  the  city  pos- 
sessed. 

I  have  already  spoken  of  the  fort  erected  in  1614  at  the 
southern  extremity  of  the  Island,  then  called  Fort  Manhattan, 
which  was,  however,  but  a  palisaded  work.  In  1626,  on  the 
arrival  of  Governor  Minuit,  it  was  greatly  enlarged  under 
the  direction  of  an  engineer  officer,  Kyrm  Frederick,  and  its 
name  changed  to  Fort  Amsterdam.  It  was  for  a  long  period 
an  earthwork,  though  planned  on  scientific  principles,  and 
of  the  shape  and  size  which  it  always  afterwards  maintained. 

70 


THE  SETTLEMENT  OF  NEW  AMSTERDAM 

As  emergencies  arose  which  called  for  strengthening  it,  addi- 
tional stone  work  was  raised  in  place  of  the  earthen  walls, 
and  in  course  of  time  it  presented  stone  faces  on  every  side, 
and  was  a  formidable  fortress. 

On  the  north  the  city  was  defended  by  a  line  of  palisades 
built  across  it  nearly  coincident  with  the  present  Wall  Street, 
which  had  been  erected  in  1653  in  anticipation  of  an  invasion 
from  New  England.  This  consisted  of  posts  twelve  feet 
high,  set  six  feet  apart,  sided  up  with  boards  and  having  an 
earthen  embankment  on  the  inner  side  sufficiently  high  to 
enable  the  defenders  to  stand  on  it  and  fire  over  the  top.  It 
was  entered  through  two  gates,  one  near  Broadway  and  the 
other  at  the  East  River,  both  of  which  were  defended  by 
block  houses.  But  these  defenses,  however  valuable  against 
savages  and  their  fellow  colonists,  were  of  no  avail  against 
the  force  of  the  English.  The  governor  himself  was  desirous 
of  offering  resistance,  but  the  burgomasters  were  satisfied 
that  it  would  be  useless,  and  insisted  upon  surrender.  At 
eight  o'clock  on  the  morning  of  September  8,  1664,  Stuy- 
vesant  at  the  head  of  his  troops  marched  out  of  the  fort  with 
all  the  honors  of  war,  pursuant  to  the  terms  of  the  surrender, 
which  also  guaranteed  to  the  conquered  their  religion,  their 
law  of  inheritance,  and  their  trade  with  Holland. 

The  governor  with  his  troops  marched  down  Beaver  Street 
to  the  North  River,  where  they  embarked  for  Holland,  and 
the  unfortunate  leader  was  called  upon  to  answer  for  the 
capitulation  to  his  superiors.  Considering  the  force  of  the 
English,  the  apathy  of  the  Dutch,  and  the  inferior  character 
of  the  fortifications,  together  with  Peter  Stuyvesant's  well- 

71 


THE  SETTLEMENT  OF  NEW  AMSTERDAM 

earned  reputation  for  bravery  and  skill  in  warfare,  it  is  only 
fair  to  assume  that  he  was  fully  justified  in  his  conduct.  But 
their  High  Mightinesses  were  highly  and  mightily  enraged 
at  the  loss  of  their  Province,  and  naturally  inclined  to  put  all 
the  blame  upon  the  unlucky  responsible  agent.  They  even 
professed  to  believe  that  motives  of  personal  interest  con- 
trolled the  governor's  action,  and  that  he  was  mainly  actuated 
by  a  desire  to  save  his  own  White  Hall  from  the  destruction 
that  would  result  from  a  bombardment. 

Stuyvesant  after  making  his  report  returned  to  the  city  in 
about  two  years,  and  spent  the  remainder  of  his  life  peacefully 
at  his  Bowerie,  on  a  part  of  which  St.  Mark's  Church  now 
stands,  where  he  died  in  1682. 

In  1667,  by  the  treaty  of  Breda,  New  Netherland  was 
ceded  to  the  English,  in  return  for  which  Holland  received 
Surinam  or  Dutch  Guiana.  In  the  same  year  Nichols  re- 
tired from  his  position  and  was  succeeded  by  Francis  Love- 
lace, whose  theory  of  government  was  that  "  the  method  for 
keeping  the  people  in  order  is  severity,  and  laying  such  taxes 
as  may  give  them  liberty  for  no  thought  but  how  to  discharge 
them."  It  is  not  to  be  wondered  at  that  the  people  groaned 
under  their  new  rulers,  and  that  when  in  1673,  upon  the  re- 
newal of  war  between  England  and  Holland,  a  small  squadron 
under  command  of  Banckes,  after  having  committed  ravages 
in  Virginia  for  the  annoyance  of  English  commerce,  entered 
the  harbor  of  New  York  for  the  purpose  of  regaining  the  lost 
possessions,  it  was  received  with  enthusiasm.  On  the  30th 
of  July  the  Dutch  ships  moored  under  the  fort.  The  Eng- 
lish governor  was  absent  in  Connecticut  and  his  representa- 

72 


THE  SETTLEMENT  OF  NEW  AMSTERDAM 

live  had  no  means  of  defense.  The  Dutchman  would  admit 
of  no  excuses  for  delay  in  surrendering  the  fort  which  he 
claimed  as  rightfully  belonging  to  his  government.  Men 
were  landed  on  the  North  River  shore  above  the  city,  marched 
across  the  fields  into  Broadway,  and  they  fixed  their  standards 
and  planted  their  cannon  on  the  north  end  of  Bowling  Green, 
facing  the  fort  gate.  The  fort  at  once  surrendered  and  its 
garrison  marched  out.  New  York  became  New  Orange 
and  the  fort  exchanged  the  name  of  Fort  James,  which  had 
been  given  it  by  its  English  possessors,  for  that  of  Fort  Wil- 
liam Hendrick.  On  the  12th  of  August  the  magistrates 
and  principal  burgher  officers  were  assembled  and  finally 
absolved  from  their  oaths  of  alliance  taken  to  the  British 
government.  Anthony  Colve  who  had  accompanied  the  fleet 
was  installed  as  governor,  and  the  good  burghers  once  more 
smoked  their  pipes  in  peace  under  the  folds  of  the  yellow  flag. 
But  their  comfort  did  not  long  continue.  The  treaty  of 
Westminster  between  Great  Britain  and  the  States  General 
was  signed  the  following  year,  and  by  the  Sixth  Article  New 
Netherland  was  restored  to  the  English.  The  Duke  of  York 
confirmed  his  authority  by  a  new  patent,  and  appointed 
Major  Andros  to  be  his  governor.  The  latter  at  once  set 
sail  with  a  strong  force  for  his  Province,  but  before  his  advent 
the  sad  news  had  already  reached  the  little  city.  On  the 
15th  of  October  Governor  Colve  appeared  before  the  Bur- 
gomasters and  Schepens  assembled  at  his  invitation  in  the 
City  Hall,  and  advised  them  that  he  had  received  by  the 
Government  Ship  Muyll  Tromp  letters  and  absolute  orders 
from  the  Lords,  Mayors,  and  their  High  Mightinesses  for  the 

73 


THE  SETTLEMENT  OF  NEW  AMSTERDAM 

restoration  of  the  Province  of  New  Netherland  to  his  Majesty 
of  Great  Britain,  pursuant  to  the  Treaty  of  Peace  concluded 
in  February,  and  further  orders  for  himself  to  return  imme- 
diately with  the  garrison. 

One  week  later  (October  22,  1674)  the  new  governor 
cast  anchor  and  penned  his  first  demand  for  the  surrender 
of  the  Province. 

A  lengthy  correspondence  ensued  between  him  and  Gov- 
ernor Colve, dated  by  the  former,  "From  aboard  his  Majesty's 
Ship  The  Diamond  at  Anker  near  Staten  Island,"  conducted 
with  great  courtesy  on  both  sides  in  reference  to  the  details 
of  the  transfer  and  the  privileges  to  be  accorded  to  the  Dutch 
residents.  On  the  9th  November,  1674  (new  style),  Gov- 
ernor Colve  released  his  compatriots  from  their  allegiance  to 
the  States  General,  and  on  the  10th  the  English  forces  took 
possession  of  the  fort  and  town,  and  the  good  St.  Nicholas 
was  definitely  superseded  by  St.  George. 

The  growth  of  the  city  had  been  slow  —  in  1615  it  con- 
tained four  houses  and  thirty  inhabitants,  and  when  captured 
by  Nichols  in  1664,  he  writes  to  the  Duke  of  York  that  "such 
is  the  mean  condition  of  this  town  that  not  one  soldier  to  this 
day  has  lain  in  sheets  or  upon  any  other  bed  than  straw." 
By  a  census  taken  in  1678,  after  the  final  surrender  to  the 
English,  there  were  then  but  343  houses  and  3430  inhabitants. 

In  1682  Thomas  Dongan  was  made  governor  in  place  of 
Andros,  and  described  the  inhabitants  of  New  York  in  a 
report  to  the  Board  of  Trade  made  in  1687  in  language 
which  would  not  be  altogether  inappropriate  to-day.  He 
says  that  the  city  has  "first  a  chaplain  belonging  to  the  Fort, 

74 


THE  SETTLEMENT  OF  NEW  AMSTERDAM 

of  the  Church  of  England:  second,  a  Dutch  Calvinist:  thirdly, 
a  French  Calvinist;  fourthly,  a  Dutch  Lutheran.  Here  bee 
not  many  of  the  Church  of  England;  few  Roman  Catholicks; 
abundance  of  Quaker  preachers,  men  and  women  especially; 
singing  Quakers,  ranting  Quakers;  Sabbatarians;  anti- 
Sabbatarians;  some  Anabaptists;  some  Independents;  some 
Jews ;  in  short,  of  all  sorts  of  opinions  there  are  some,  and  the 
most  part  of  none  at  all." 

At  this  time  no  fewer  than  eighteen  languages  were  com- 
monly spoken  in  its  streets,  and  it  foreshadowed  the  great 
metropolis  it  has  since  become. 

It  does  not  fall  within  the  scope  of  this  paper,  or  of  the  time 
allotted  me,  to  give  the  details  of  its  wonderful  growth.  But 
the  principles  of  civil  and  religious  liberty  for  which  the  citi- 
zens of  that  day  constantly  strove,  until  they  finally  compelled 
their  acceptance  by  a  selfish  trading  corporation  and  a  tyran- 
nical governor,  are  still  cherished.  Their  triumph  was 
assured  when  in  1660  the  Directors  wrote  to  Governor  Stuyve- 
sant:  "Let  every  peaceful  citizen  enjoy  freedom  of  conscience, 
this  maxim  has  made  our  city  the  asylum  for  fugitives  from 
every  land:  tread  in  its  steps  and  you  shall  be  blessed." 

St.  Nicholas  is  not  longer  recognized  as  the  Patron  Saint 
of  the  city  founded  under  his  care.  Yet  we  may  wisely  and 
safely  think  we  can  still  trace  the  gracious  influence  of  that 
genial  friend  of  childhood,  and  that  the  kindly  feelings  and 
sturdy  virtues  which  he  nourished  will  long  flourish  among 
the  citizens  of  New  York  as  they  flourished  among  the 
burghers  of  New  Amsterdam. 


75 


HISTORICAL  SKETCH  OF  CHRIST 
CHURCH,  NEW  YORK  CITY 

REPRINTED    FROM    THE    MAGAZINE    OF    AMERICAN 
HISTORY  ON  THE  OCCASION  OF  THE  CELEBRATION 
OF  THE  CENTENNIAL  OF  THE  CHURCH  ON 
APRIL   3D,    1893 


r 


HISTORICAL  SKETCH  OF  CHRIST  CHURCH,  NEW 
YORK  CITY 


HRIST  Church  dates  its  organization  back  to  the  year 
V_>1  1793,  and  has  ever  since  that  date  been  identified  with 
the  history  of  this  city,  doing  its  work  with  zeal  and  fidelity 
through  varying  fortune,  alternately  encouraged  and  dis- 
couraged, and  to-day  looking  forward  hopefully  to  a  bright 
and  useful  future.  Such  a  sketch  of  its  career  as  can  be 
comprised  within  the  limits  of  a  brief  notice  will  doubtless 
prove  interesting  to  those  who  care  for  the  antiquities  and 
early  chronicles  of  New  York. 

In  the  year  just  mentioned,  the  Rev.  Joseph  Pilmore  was 
rector  of  the  united  churches  of  Trinity,  St.  Thomas,  and 
All  Saints  in  the  city  of  Philadelphia.  In  company  with  a 
Mr.  Boardman  he  was  sent  to  this  country  by  Mr.  Wesley 
in  the  year  1769,  in  response  to  an  appeal  from  the  Methodist 
church,  then  and  now  situated  in  John  Street,  between 
Nassau  and  William  streets,  and  at  that  time  called  Wesley 
Chapel,  and  was  one  of  the  earliest  itinerant  Methodist 
Wesleyan  preachers  in  America.  He  and  his  companion 
are  described  as  most  laborious  and  devoted  men,  mighty 
travelers  through  the  wilds  of  America  in  the  days  of  Ogle- 
thorpe.  Dr.  Pilmore  was  born  about  the  year  1734,  in  the 

79 


HISTORICAL  SKETCH  OF  CHRIST  CHURCH 

village  of  Tedmouth,  Yorkshire,  England,  his  parents  being 
persons  of  respectability,  members  of  the  Church  of  Eng- 
land. At  the  age  of  sixteen  he  became  acquainted  with  the 
Rev.  John  Wesley,  who  was  then  preaching  in  various  parts 
of  the  United  Kingdom,  and  through  his  instrumentality 
became  hopefully  pious.  He  was  educated  at  the  school  of 
Kingswood,  where  he  acquired  a  fair  amount  of  English 
literature  as  well  as  some  knowledge  of  the  Latin,  Greek, 
and  Hebrew  languages,  and,  what  was  of  far  more  impor- 
tance, a  taste  for  books  and  mental  improvement  which 
endured  through  a  long  life.  After  finishing  his  studies  he 
was  appointed  by  Mr.  Wesley  to  travel  as  one  of  his  itiner- 
ant lay  preachers,  and  given  a  certificate  by  him  as  a  "lay 
helper"  in  the  work.  After  his  arrival  in  this  country  he 
determined  to  adopt  the  principles  of  the  Protestant  Epis- 
copal Church  in  America,  and  was  ordained  a  Deacon  by 
Bishop  Seabury  of  Connecticut  on  the  27th  of  November, 
1785,  receiving  Priest's  orders  at  the  hands  of  the  same 
prelate  on  the  29th  of  that  month  after  due  canonical  exam- 
ination. 

In  June  of  the  next  year  he  was  present  at  a  general  con- 
vention held  at  St.  Paul's  Church  in  this  city,  as  a  repre- 
sentative of  his  Philadelphia  parish,  at  the  height  of  the 
controversy  between  the  churches  of  New  England,  which 
already  enjoyed  the  Episcopate  through  the  Scottish  line 
of  succession  in  the  person  of  Dr.  Samuel  Seabury,  and  the 
more  southern  churches,  which  under  the  leadership  of 
Doctors  WTiite  and  Provoost  were  endeavoring  to  obtain 
succession  in  the  English  line.  This  dissension  seriously 

80 


HISTORICAL  SKETCH  OF  CHRIST  CHURCH 

threatened  for  a  time  to  prevent  any  general  union  of  the 
Church  in  America,  the  members  outside  of  New  England 
declining  to  consent  to  any  acts  implying  the  validity  of 
Dr.  Seabury's  ordinations.  Efforts  were  made,  but  unsuc- 
cessfully, to  expel  Dr.  Pilmore  from  the  convention  as  not 
properly  ordained,  and  a  resolution  was  passed  recommend- 
ing the  respective  state  conventions  not  to  admit  any  per- 
son as  a  minister  who  should  receive  ordination  from  any 
Bishop  residing  in  America  during  the  application  then 
pending  to  the  English  Bishops  for  Episcopal  Consecration. 
The  feelings  excited  by  this  controversy  were  bitter,  and 
it  is  probable  that  Dr.  Pilmore,  who  was  a  man  of  intense 
personality,  made  enemies  as  well  as  friends  during  its  pro- 
gress. It  is  evident  that  he  had  made  many  friends,  for 
in  1793  a  petition  was  presented  by  William  Post  and  one 
hundred  and  seventy-two  other  members  of  Trinity  Parish 
to  the  Vestry  praying  that  the  Rev.  Joseph  Pilmore  might 
be  called  as  an  assistant  minister,  and  a  Sunday  evening 
lecture  established.  This  application  having  been  declined, 
the  petitioners  determined  to  organize  a  parish  of  their  own, 
and  on  the  3d  of  April,  1793,  filed  in  the  county  clerk's  office 
their  certificate  of  incorporation  under  the  name  of  Christ 
Church. 

The  infant  parish  at  once  called  Dr.  Pilmore  as  its  rector, 
and  proceeded  to  erect  a  house  of  worship  on  the  north 
side  of  Ann  Street  between  William  and  Nassau  streets,  on 
land  conveyed  to  it  by  Mr.  George  Warner,  one  of  its  earliest 
and  most  generous  benefactors.  Dr.  Pilmore  assumed 
charge  of  the  parish  during  the  following  year,  and  continued 

81 


HISTORICAL  SKETCH  OF  CHRIST  CHURCH 

as  its  rector  until  October,  1804,  when  he  was  compelled  by 
the  failing  health  of  his  wife,  under  the  advice  of  her  physi- 
cians, to  leave  New  York  and  remove  to  Philadelphia,  where 
he  became  connected  with  St.  Paul's  Church,  and  where  he 
resided  until  his  death  on  July  24,  1825.  He  was  a  man  of 
imposing  presence,  of  great  flow  of  language,  and  "impas- 
sioned oratory,"  usually  commencing  his  sermons  by  reading 
from  manuscript,  but  soon  becoming  carried  away  by  his 
subject  and  bursting  into  eloquent  extemporaneous  flights 
of  fancy.  The  church  was  usually  crowded  during  his 
services,  even  standing  room  being  scarcely  obtainable. 

The  separation  from  Trinity,  and  the  election  of  a  rector 
who  had  been  rejected  by  that  parish,  produced  an  opposi- 
tion from  that  body  to  the  new  parish,  and  Christ  Church 
was  refused  admission  to  the  state  convention.  Delegates 
were  duly  appointed  every  year,  and  application  for  admis- 
sion made,  which  was  as  regularly  rejected,  until  1802,  when, 
nine  years  after  the  organization,  it  was  formally  admitted 
into  fellowship  with  the  other  churches,  upon  executing  to 
Trinity  Parish  a  full  deed  of  relinquishment  of  any  claim 
which  it  might  have  to  any  portion  of  the  property  of  that 
corporation.  It  was  natural  for  Trinity  to  insist  upon  this 
condition,  since  its  property  had  been  given  to  the  "Rector 
and  Inhabitants  of  the  City  of  New  York  in  Communion 
with  the  Church  of  England  as  by  law  established,"  and 
there  was  plausible  ground  for  other  such  inhabitants  than 
those  belonging  to  Trinity  Parish  to  claim  an  interest  in  it. 
Indeed,  some  few  years  after  this  date  (in  1812)  quite  a 
lively  controversy  sprang  up  over  the  asserted  right  of  every 

82 


HISTORICAL  SKETCH  OF  CHRIST  CHURCH 

Churchman  in  the  city  to  vote  at  the  election  of  vestrymen 
in  that  parish,  and  it  was  necessary  to  apply  to  the  legislature 
for  a  special  act  to  settle  the  dispute.  By  this  time  the 
harmony  which  has  ever  since  existed  had  been  completely 
established  between  the  two  parishes,  and  Christ  Church 
earnestly  seconded  the  efforts  of  her  elder  sister  to  effect 
the  desired  object. 

On  the  29th  of  July,  1804,  the  Rev.  Thomas  Lyell  was 
duly  elected  rector  in  place  of  Dr.  Pilmore,  and  on  the  10th 
of  March  following  formally  inducted  into  the  position, 
which  he  held  for  forty-four  years  until  his  death.  In  1821 
it  was  decided  to  abandon  the  old  building  in  Ann  Street 
and  move  farther  up-town,  a  step  rendered  desirable  by  the 
growth  of  the  city,  and  the  close  proximity  of  so  many  other 
churches  of  the  same  faith.  In  the  immediate  vicinity 
were  Trinity  Church  and  St.  Paul's  Chapel  in  their  present 
sites,  Grace  Church  at  the  corner  of  Broadway  and  Rector 
Street,  the  French  Church  Du  St.  Esprit  in  Pine  Street 
opposite  to  where  the  Sub-Treasury  now  stands,  and  St. 
George's  Church  at  the  corner  of  Beekman  and  Cliff  Streets. 
An  opportunity  occurred  to  obtain  at  a  reasonable  price  five 
lots  of  land  in  Anthony  (now  Worth)  Street,  just  west  of 
Broadway  and  opposite  the  ground  then  occupied  by  the 
New  York  Hospital.  The  property,  called  the  Anthony 
Street  Theatre,  had  been  fitted  up  as  a  circus  by  the  pro- 
prietors of  the  old  Park  Street  Theatre  during  the  summer 
of  1817  for  ballets  and  similar  performances  during  the 
regular  recess  of  the  theatre,  and  when  the  latter  was  de- 
stroyed by  fire  on  the  25th  of  May,  1820,  the  Anthony  Street 

83 


HISTORICAL  SKETCH  OF  CHRIST  CHURCH 

establishment  was  furnished  and  used  in  its  stead  until 
the  building  on  the  old  site  was  completed  in  August,  1821. 
The  church  purchased  the  property  in  January,  1822,  and 
at  once  proceeded  to  erect  a  handsome  gray  and  brown- 
stone  edifice  in  the  pointed  Gothic  style,  which  was  formally 
consecrated  on  the  29th  of  March,  1823.  A  few  discontented 
persons  who  opposed  the  removal  from  Ann  Street  organized 
a  parish  under  the  leadership  of  Rev.  John  Sellon,  which 
was  called  Christ  Church  in  Ann  Street,  and  commenced 
a  suit  in  chancery  to  have  themselves  declared  the  simon 
pure  Christ  Church  and  entitled  to  the  endowment  which 
had  been  given  it  by  Trinity  Church.  But  the  diocesan 
convention  declined  to  recognize  them  as  a  parish  under 
that  title,  the  Court  of  Chancery  dismissed  their  bill,  and 
they  lingered  along  until  the  close  of  the  year  1825,  when 
Mr.  Sellon  resigned  and  the  parish  fell  to  pieces.  The 
property  was  purchased  by  a  Roman  Catholic  congregation, 
which  occupied  the  building  until  its  destruction  by  fire 
in  1834,  when  the  land  was  sold  for  business  purposes. 

The  church  continued  to  prosper  under  the  leadership  of 
Dr.  Lyell,  who  was,  like  his  predecessor,  a  convert  from 
Methodism,  and  an  earnest,  eloquent  preacher,  and  pursued 
a  course  of  even  and  uneventful  prosperity  until  the  church 
edifice  was  destroyed  by  fire  on  July  30,  1847. 

The  parish  hired  temporary  quarters  in  the  Minerva 
Rooms,  No.  406  Broadway,  which  it  occupied  for  nearly  a 
year  while  the  work  of  rebuilding  the  church  was  pushed 
rapidly  forward.  But  the  rector  did  not  live  to  see  its  com- 
pletion. After  a  pastorate  of  the  remarkable  length  of 

84 


HISTORICAL  SKETCH  OF  CHRIST  CHURCH 

forty-four  years,  he  died  on  the  5th  of  March,  1848.  We 
are  told  by  a  member  of  his  family  that  he  was  confined  to 
his  room  only  a  single  week,  and  died  of  influenza.  This 
disease,  which  was  not  painful,  was  endured  with  entire 
patience  and  resignation.  "He  passed  quietly  out  of  the 
world  as  an  infant  drops  asleep,  having  on  his  countenance 
in  death  an  infant's  innocent  smile."  The  funeral  services 
took  place  at  St.  Paul's  Chapel  on  March  7,  1848,  being  Ash 
Wednesday,  and  the  sermon  was  preached  by  the  rector  of 
Trinity  Parish,  the  Rev.  Dr.  Berrian. 

There  must  have  been  much  that  was  lovable  and  attract- 
ive about  a  man  who  could  continue  as  the  rector  of  one 
parish  for  so  long  a  period,  sustain  it  through  every  vicissitude, 
and  retain  not  only  the  affection  of  every  member  of  his  own 
parish,  but  the  respect  and  esteem  of  every  one  with  whom 
he  was  brought  in  contact.  A  tablet  was  erected  to  his 
memory  in  the  church,  which  now  stands  in  the  vestry  room 
of  the  edifice  at  present  occupied  by  the  parish. 

The  church  was  completed  and  consecrated  on  the  29th 
of  June  following,  but  the  vacant  pulpit  was  not  perma- 
nently filled  until  the  next  October,  when  the  Rev.  Charles 
H.  Halsey,  at  the  time  an  agent  of  the  Protestant  Episcopal 
Board  of  Missions  and  previously  rector  of  St.  Paul's  Church, 
Sing  Sing,  New  York,  was  called  to  and  accepted  the  charge 
of  the  parish.  The  rapid  removal  of  the  residence  portion 
of  the  city  farther  up-town  soon  rendered  the  location  of 
the  church  undesirable,  and  in  April,  1852,  a  committee  was 
appointed  to  consider  the  subject  of  removal.  Their  labors 
resulted  in  the  sale  of  the  Anthony  Street  property  and  the 

85 


HISTORICAL  SKETCH  OF  CHRIST  CHURCH 

purchase  of  four  lots  of  ground  on  the  north  side  of  Eighteenth 
Street,  west  of  Fifth  Avenue,  on  which  was  erected  the  church 
and  rectory  now  occupied  by  St.  Ann's  Church  for  Deaf- 
Mutes.  The  new  church  was  formally  consecrated  and 
occupied  on  June  30,  1854,  and  for  some  months  previously 
the  congregation  worshiped  in  the  chapel  of  the  University, 
on  Washington  Square.  On  the  2d  of  May  following  the 
parish  met  a  severe  blow  in  the  sudden  death  of  their  rector. 
He  had  on  that  day  visited  a  new  building  adjoining  the 
Everett  House  in  Union  Square,  and  while  standing  at  a 
window  in  the  fourth  story  lost  his  balance  and  fell  to  the 
street,  never  speaking  after  the  fall  and  surviving  the  acci- 
dent but  half  an  hour.  He  was  a  man  of  great  popularity, 
and  his  unexpected  death  awakened  wide-spread  sympathy 
for  his  bereaved  family  and  congregation.  He  was  suc- 
ceeded by  the  Rev.  F.  S.  Wiley,  then  rector  of  the  Church 
of  the  Nativity  in  Philadelphia,  who  continued  in  charge 
of  the  parish  until  October,  1862,  when  increasing  ill-health 
compelled  him  to  resign  his  cure  and  remove  to  Italy,  where 
he  died  at  Florence,  January  20,  1864.  During  his  rector- 
ship in  July,  1858,  the  property  in  Eighteenth  Street  was 
exchanged  for  the  church  on  Fifth  Avenue,  from  which  the 
parish  removed  to  its  present  site. 

In  November,  1862,  the  Rev.  Ferdinand  C.  Ewer,  at  that 
tune  assistant  to  the  Rev.  Dr.  Gallaudet  in  St.  Ann's  Church, 
was  invited  to  succeed  Mr.  Wiley,  and  accepted  the  call. 
The  parish  continued  to  prosper  under  his  care  until  1868, 
when  he  became  imbued  with  the  doctrines  of  the  so-called 
ritualists,  and  preached  his  celebrated  sermons  on  "Prot- 

86 


HISTORICAL  SKETCH  OF  CHRIST  CHURCH 

estantism  a  Failure."  The  result  was  disastrous.  Origi- 
nally founded  by  those  discontented  with  the  church  doctrine 
of  Trinity  Parish,  Christ  Church  had  always  been  distinctly, 
in  party  shibboleth,  a  low  church,  and  many  of  the  congre- 
gation were  unable  to  follow  their  rector  in  his  new  departure. 
On  the  other  hand,  his  great  ability  and  striking  personal 
qualities  had  endeared  many  to  him  who  were  unwilling 
to  lose  his  guidance.  So  matters  continued  for  a  while, 
many  of  the  dissatisfied  leaving  the  parish  and  forming 
other  connections,  until  November,  1871,  when  Dr.  Ewer 
resigned  and  organized  the  new  church  of  St.  Ignatius, 
taking  with  him  many  of  the  members  of  Christ  Church, 
who  were  personally  attached  to  him,  and  leaving  a  wreck 
behind  him.  This  condition  of  affairs  was  severely  felt  by 
his  successor,  the  Rev.  Hugh  Miller  Thompson,  D.D., 
formerly  of  St.  James's  Church,  Chicago,  but  he  applied 
himself  with  great  energy  and  ability  to  the  work  of  rebuilding 
the  parish,  and  had  met  with  great  success  in  his  labors, 
when,  in  November,  1875,  he  received  and  accepted  a  call 
to  the  parish  of  Trinity  Church,  New  Orleans.  The  sep- 
aration was  deeply  deplored  by  his  congregation  and  himself, 
but  both  parties  felt  that  the  new  field  offered  wider  oppor- 
tunities for  usefulness,  and  that  it  was  his  duty  to  assume 
the  new  burden. 

For  nearly  a  year  after  his  departure  the  parish  remained 
without  a  permanent  rector  until,  on  the  llth  of  December, 
1876,  the  Rev.  William  A.  McVickar,  D.D.,  was  called  to 
the  vacant  post.  His  ministry  was  attended  with  the  hap- 
piest results,  and  the  parish  was  rapidly  increasing  in  strength 

87 


HISTORICAL  SKETCH  OF  CHRIST  CHURCH 

and  prosperity  when  its  bright  prospects  were  momentarily 
darkened  by  his  sudden  and  unexpected  death,  which  occurred 
on  the  24th  of  September,  1877,  after  a  brief  illness.  The 
sympathy  awakened  by  this  blow  was  heartfelt  and  universal, 
and  the  bishop  of  the  diocese  took  occasion,  at  the  diocesan 
convention,  which  met  in  the  same  month,  to  refer  in  most 
touching  and  appreciative  terms  to  the  great  loss  sustained 
by  the  church  and  the  parish.  Space  is  too  short  to  allow 
the  writer  to  do  more  than  allude  to  the  affectionate  manner 
in  which  the  bishop  spoke  of  him  —  as  he  really  was  — 
"the  scholar,  the  gentleman,  the  earnest,  thoughtful,  reverent, 
loving  minister  of  God."  He  was  succeeded  by  the  Rev. 
J.  S.  Shipman,  D.D.,  called  November  9,  1877,  the  present 
rector. 

Dr.  Shipman  entered  Yale  College  in  the  class  of  '55, 
but,  on  account  of  seriously  impaired  health,  was  obliged  to 
pursue  the  greater  part  of  his  course  under  private  tuition. 
His  instructor  during  those  years  in  ancient  languages  and 
in  philosophy,  as  afterward  in  theology,  was  one  who  is 
known  as  among  the  ripest  scholars  in  the  Church  —  the 
Reverend  Professor  Joseph  M.  Clarke,  D.D.,  now  holding 
the  chair  of  Hebrew  and  Exegesis  in  the  Divinity  School 
at  Nashotah.  He  was  admitted  to  the  diaconate  by  Bishop 
Delancey  in  St.  Peter's  Church,  Auburn,  in  the  autumn  of 
1857,  and  to  the  priesthood,  by  the  same  bishop,  in  Trinity 
Church,  Utica,  in  the  autumn  of  the  following  year. 

His  first  cure  was  that  of  the  united  parishes  of  St.  John's, 
Whitesboro',  and  St.  Peter's,  Oriskany,  in  what  is  now  the 
diocese  of  Central  New  York.  From  this  charge  he  accepted 

88 


HISTORICAL  SKETCH  OF  CHRIST  CHURCH 

a  call  in  1859  to  the  rectorship  of  Christ  Church,  Mobile 
—  the  oldest  and  largest  parish  in  Alabama.  In  1862,  soon 
after  the  outbreak  of  the  war,  he  resigned  this  parish  to 
accept  that  of  Christ  Church,  Lexington,  Kentucky  — 
from  which,  after  a  pastorate  extending  over  sixteen  years, 
and  after  declining  the  offer  of  a  bishopric,  he  came  to  this 
city.  It  conveys  a  high  tribute  to  his  tact  and  good  judg- 
ment to  say  that  during  the  troubled  time  of  the  civil  war, 
in  that  borderland  of  conflict,  where  old  friendships  and 
even  family  ties  were  often  severed  by  the  passions  of  the 
hour,  he  succeeded  in  maintaining  peace  and  kindly  feeling 
among  the  different  members  of  his  congregation,  and  en- 
tirely avoided  the  bitter  controversies  which  wrecked  so 
many  of  the  parishes  around  him.  Having  built  the  parish 
up  until  it  became  one  of  the  most  active  and  influential, 
as  well  as  one  of  the  most  prosperous,  in  the  entire  diocese, 
he  could  well  afford  to  leave  it  for  a  wider  field  of  usefulness, 
although  greatly  to  the  regret  of  those  who  had  known  him 
so  long  and  learned  to  love  him  so  well  —  a  regret  which 
his  present  parishioners  can  thoroughly  understand  and 
appreciate.  A  courteous  gentleman  of  refined  manners, 
earnest  and  sincere  in  his  work,  kindly  and  sympathetic 
with  all  who  come  in  contact  with  him,  learned  and  eloquent 
in  the  pulpit,  fearless  in  his  denunciation  of  the  wrong  and 
in  his  advocacy  of  the  right,  he  makes  a  deep  and  abiding 
impression  on  all  who  are  brought  within  the  sphere  of  his 
influence.  Unlike  many  of  the  clergy  of  the  day,  he  makes 
no  attempt  to  belittle  or  deny  the  scientific  discoveries  of 
the  age,  but  frankly  admits  every  fact  that  is  susceptible 

89 


HISTORICAL  SKETCH  OF  CHRIST  CHURCH 

of  proof.  He  acknowledges  no  controversy  between  re- 
ligion and  science,  but  claims  that  they  are  perfectly  recon- 
cilable and  strives  to  show  their  absolute  and  entire  harmony. 
The  facts  of  science  must  correspond  with  the  truths  of 
revelation,  and  his  sermons  upon  this  subject  have  been 
some  of  the  most  thoughtful  and  valuable  ever  delivered 
in  a  metropolitan  pulpit.  It  is  beyond  question  that  the 
scientific  infidelity  of  the  day  must  be  met — if  it  is  to  be  met 
and  conquered  —  not  by  evasion  or  half -denials,  but  by 
boldly  confessing  the  facts  upon  which  it  rests  and  by  har- 
monizing those  facts  with  the  statements  of  Scripture.  To 
do  this  successfully,  the  champion  of  Christianity  must  be 
a  scientist  as  well  as  a  theologian  and  in  both  of  these  branches 
of  learning  Dr.  Shipman  has  been  a  wide  and  careful  student. 
Under  such  leadership,  the  historic  parish  of  Christ  Church 
is  rapidly  regaining  her  ancient  power  and  usefulness. 

In  the  fall  of  1885  the  vestry  adopted  a  resolution  to  the 
effect  that  in  their  opinion  it  was  desirable  to  remove  the 
church  to  some  point  farther  up-town,  and  appointed  a 
committee  of  three  of  their  number  to  examine  into  the 
subject  and  report  at  a  special  meeting.  Such  meeting 
was  held  on  the  6th  of  June,  1886,  when  the  committee 
reported  that  a  piece  of  property  on  the  northwest  corner  of 
Broadway  and  71st  Street  was  in  their  opinion  exceedingly 
advantageous  for  the  purpose,  and  could  be  purchased  for 
about  eighty  thousand  (80,000)  dollars,  but  that  no  offer  had 
been  made  for  the  property  at  Fifth  Avenue  and  Thirty-fifth 
Street,  which  the  committee  considered  it  desirable  to  accept. 
Under  these  circumstances  the  corporation  was  unable  to 

90 


HISTORICAL  SKETCH  OF  CHRIST  CHURCH 

make  the  purchase,  but  three  of  the  members  of  the  vestry 
generously  offered  to  buy  it  themselves  and  hold  it,  with 
the  understanding  that  if  the  church  should  be  in  a  position 
to  take  it  within  a  reasonable  time,  they  would  sell  it  at  cost. 
But  the  reasonable  time  elapsed  before  the  sale  of  the  old 
edifice  could  be  accomplished,  two  of  the  purchasers  had 
parted  with  their  interest  to  the  third,  and  he  was  under 
no  obligation,  moral  or  equitable,  to  carry  out  the  original 
understanding  when  the  Fifth  Avenue  property  was  sold 
in  May,  1888.  But  this  gentleman  was  most  anxious  to 
promote  the  welfare  of  the  parish,  and  when  it  was  repre- 
sented to  him  that  no  location  for  the  new  church  so  desirable 
and  so  advantageous  as  the  site  it  now  occupies  could  be 
found,  he  very  generously  at  once  proposed  to  transfer  the 
lots  to  the  corporation  for  their  actual  cost  to  him,  although 
the  property  had  then  very  largely  appreciated  in  value. 
This  noble  gift,  for  such  it  really  was,  enabled  the  vestry 
to  carry  out  their  views  and  to  proceed  at  once  to  make 
preparations  for  the  erection  of  the  new  building.  In  the 
following  October  the  architect  was  appointed,  plans  and 
specifications  approved,  and  the  work  of  excavating  for  the 
foundation  begun.  In  March,  1889,  the  contract  for  the 
building  was  made,  and  the  work  proceeded  to  its  comple- 
tion in  1890,  on  the  18th  day  of  May,  in  which  year  the  first 
service  was  held  in  the  new  church. 

But  the  rapid  growth  of  the  neighborhood  soon  proved 
that  the  accommodations  provided  were  inadequate  for  the 
demand,  and  the  seating  capacity  of  the  building  must  be 
enlarged.  In  the  spring  of  1892  the  vestry  decided  to  erect 

91 


HISTORICAL  SKETCH  OF  CHRIST  CHURCH 

an  apse  at  the  east  end,  flanked  by  towers,  which  would  at 
once  add  to  the  architectural  beauty  of  the  church,  and 
increase  the  number  of  pews.  At  the  same  time,  it  was 
determined  to  build  a  rectory  on  land  owned  by  the  cor- 
poration in  the  rear  of  the  church.  Both  of  these  very 
desirable  additions  have  been  completed,  and  with  them 
the  old  parish  has  now  a  home  suited  to  its  needs,  and  finds 
itself  at  the  completion  of  the  first  century  of  its  existence 
in  a  position  to  carry  into  effect  the  most  enthusiastic  dreams 
of  its  early  promoters. 


TICONDEROGA  AND  CROWN 
POINT 

A  PAPER  READ  AT  A  BUSINESS  COURT  OF  THE  SOCIETY 

OF  COLONIAL  WARS  IN  THE  STATE  OF  NEW 

YORK  HELD  ON  NOVEMBER  I&TH,  1900 


TICONDEROGA  AND  CROWN  POINT 

Your  Excellency  and  Gentlemen  of  the  Society: 

TO  properly  appreciate  the  strategic  value  of  Ticon- 
deroga  and  Crown  Point,  and  the  underlying  cause  of 
the  numerous  battles  which  have  been  fought  for  their  pos- 
session, it  is  necessary  to  consider  the  physical  geography  of 
that  section  of  the  country.  In  the  days  before  railroads  or 
even  long  communicating  roads  were  thought  of,  when  the 
path  from  one  of  the  scattered  settlements  to  another  was 
usually  only  an  Indian  trail  through  the  woods,  the  rivers  and 
other  water  ways  were  necessarily  the  most  usual  and  con- 
venient routes  for  travel  and  commerce,  and  for  that  reason,  an 
Irishman  is  said  to  have  remarked,  Providence  placed  all  the 
large  rivers  near  the  great  cities  of  the  world.  The  advan- 
tages of  the  route  of  which  Ticonderoga  forms  a  link  were 
early  recognized.  Thomas  Pownall,  the  English  Governor  of 
New  Jersey  in  1735,  tells  us  in  his  "Reminiscences"  that  the 
Indian  name  of  Lake  Champlain  signifies  "the  lake  that  is 
the  gate  of  the  country."  Cadwallader  Golden,  then  Surveyor 
General  of  the  Province,  in  a  report  addressed  to  the  Honor- 
able George  Clarke,  the  Lieutenant  Governor,  under  date  of 
February  14,  1737-8,  says  "the  Province  of  New  York  has 
for  the  conveniency  of  commerce  advantages  by  its  situation 

95 


TICONDEROGA  AND  CROWN  POINT 

(sic)  beyond  any  other  colony  in  North  America.  For 
Hudson's  River,  running  through  the  whole  extent  of  this 
Province,  affords  the  inhabitants  an  easy  transportation  of  all 
their  commodities  to  and  from  the  city  of  New  York.  From 
the  Eastern  Branch  there  is  only  land  carriage  of  sixteen 
miles  to  Wood  Creek,  or  to  Lake  St.  Sacrament,  both  of  which 
fall  into  Lake  Champlain,  from  whence  goods  are  transported 
by  water  to  Quebec."  The  name  of  Lake  St.  Sacrament,  or 
Horicon  as  it  was  called  by  the  Indians,  was  changed  by  Sir 
William  Johnson,  who  writes  to  the  Board  of  Trade  in  London 
under  date  of  September  3,  1755,  in  the  beginning  of  the 
French  and  English  Wars,  "I  am  building  a  fort  at  this  Lake, 
where  no  house  was  ever  before  built,  nor  a  rod  of  land 
cleared,  which  the  French  call  Lake  St.  Sacrament,  but  I  have 
given  it  the  name  of  Lake  George,  not  only  in  honor  to  his 
Majesty  but  to  ascertain  his  undoubted  Dominion  here. 
When  the  Battoes  (certain  small  boats  so  called)  are  brought 
from  the  last  fort  I  caused  to  be  built  at  the  Great  Carrying 
Place  about  17  miles  from  hence,  I  propose  to  go  down  this 
Lake  with  a  part  of  the  army,  and  take  post  at  the  end  of  it 
about  50  miles  from  hence  at  a  pass  called  Tionderouge 
(sic),  about  15  miles  from  Crown  Point,  and  there  wait 
the  coming  of  the  rest  of  the  army  and  then  attack  Crown 
Point."  The  Richelieu  River  connecting  Lake  Champlain 
with  the  St.  Lawrence  is  about  80  miles  long.  Lake  Cham- 
plain,  varying  in  width  from  40  rods  to  14  miles,  is  126  miles 
in  length,  Lake  George  from  three-quarters  of  a  mile  to  4 
miles  in  width,  36  miles  in  length,  and  the  Hudson  River 
from  Glens  Falls  to  its  mouth  about  190  miles.  A  magnifi- 

96 


TICONDEROGA  AND  CROWN  POINT 

cent  and  unrivaled  water-way  of  more  than  400  miles,  broken 
only  by  the  cany  from  Glens  Falls  to  Lake  George,  was  thus 
provided  from  north  to  south,  and  the  importance  of  cutting 
this  road  in  time  of  war,  and  preventing  the  passage  of  hos- 
tile forces,  was  apparent  even  to  the  savage  mind.  The 
narrow  channel  connecting  the  two  lakes  at  Ticonderoga  at 
once  suggested  itself  as  a  spot  to  be  fortified,  and  it  was  so 
utilized  by  the  Indians,  but  the  requirements  of  more  civilized 
warfare  and  weapons  of  greater  carrying  power  than  bows 
and  slings  demanded  the  occupation  of  an  outpost  in  the 
vicinity,  where  a  fortress  well  protected  from  an  enemy's  fire 
could  be  erected,  and  such  a  place  was  found  at  Crown  Point, 
on  a  bluff  at  the  end  of  a  long  peninsula  projecting  into  the 
lake,  easily  defensible  at  its  narrow  land  end,  and  where 
permanent  works  would  form  a  valuable  adjunct  to  the 
position  at  the  junction  of  the  lakes.  The  French  erected 
a  fort  called  Frederick  at  this  point  as  early  as  1731,  and  in 
every  war  in  this  part  of  the  country  since  that  time  the  fate 
of  these  two  positions  has  been  involved.  It  would  test  your 
patience  too  severely  to  recite  all  the  conflicts  which  have 
there  taken  place,  so  I  shall  leave  for  our  brethren  of  the  Sons 
of  the  Revolution  the  consideration  of  the  events  which 
concern  them,  and  confine  myself  to  the  history  of  the  three 
occurrences  commemorated  by  the  tablet  erected  by  this 
society  on  the  battlefield  near  the  old  French  lines  on  the 
14th  of  June  last. 

The  battle  of  July  30,  1609,  between  Champlain,  the 
Hurons  and  the  Algonquins  on  one  side,  and  the  Iroquois  on 
the  other,  is  described  by  Champlain  himself  in  his  Voyages 

97 


TICONDEROGA  AND  CROWN  POINT 

de  la  Nouvelle  France,  published  in  Paris  in  1632,  extracts 
from  which  are  contained  in  the  Documentary  History  of 
New  York.  On  the  2d  of  July  in  that  year  he  started  up 
the  rapids  of  the  Chambly,  now  the  Richelieu,  accompanied 
by  a  total  force  of  sixty  men  in  twenty-four  canoes;  how 
many  of  these  were  savages  and  how  many  of  his  own  people 
he  does  not  state,  but  there  were  evidently  several  of  the  latter. 
On  the  4th  he  entered  the  lake  which  bears  his  name,  where 
he  was  impressed  by  the  beautiful  islands  near  its  southern 
end,  formerly  inhabited  by  the  Iroquois,  but  abandoned  on 
account  of  the  state  of  war  then  existing  between  the  differ- 
ent tribes,  and  the  abundance  of  trees  and  vines.  They 
moved  slowly  up  the  lake  without  the  occurrence  of  any 
special  incident  until  the  29th,  when  about  ten  o'clock  at 
night,  near  if  not  at  Ticonderoga,  they  encountered  a  war 
party  of  Iroquois.  Both  companies  began  to  shout,  the 
strangers  withdrawing  to  the  shore,  and  the  explorers  backing 
into  the  lake  and  tieing  their  canoes  together  to  avoid  the 
risk  of  separation.  With  quite  the  courtesy  of  mediaeval 
knights,  messages  were  exchanged,  an  agreement  made  to 
defer  the  combat  until  the  next  morning,  as  it  was  then  too 
late  and  too  dark  to  fight  satisfactorily,  and  the  opposing 
forces  spent  the  rest  of  the  night  in  exchanging  insults  and 
taunts  with  each  other,  "such  as,  the  little  courage  they  had; 
how  powerless  their  resistance  against  their  arms,  and  that 
when  day  would  break  they  would  experience  this  to  their 
ruin."  The  confusion  of  pronouns  is  the  Sieur  de  Cham- 
plain's,  not  mine,  "Ours  likewise  did  not  fail  in  repartee; 
telling  them  that  they  should  witness  the  effects  of  arms  they 

98 


TICONDEROGA  AND  CROWN  POINT 

had  never  seen  before;  and  a  multitude  of  other  speeches 
such  as  is  usual  at  the  siege  of  a  town."  This  last  statement 
suggests  some  curious  reflections  as  to  what  a  siege  must 
have  been  in  the  good  old  days. 

After  daybreak  the  invaders  landed,  and  the  Iroquois,  some 
two  hundred  strong,  left  their  barricade  led  by  three  chiefs, 
and  marched  with  slow  and  dignified  steps  to  meet  them, 
doubtless  expecting  from  the  disparity  of  numbers  to  win  an 
easy  victory.  Up  to  this  point  the  entire  proceedings  seemed 
to  have  been  conducted  with  the  utmost  propriety  and  de- 
corum and  quite  in  accordance  with  the  rules  of  chivalry. 
But  here  we  must  hesitate  to  praise.  The  allies  of  Cham- 
plain  pointed  out  to  him  the  three  chiefs  bearing  lofty  plumes 
and  urged  him  to  kill  them  if  possible,  advice  with  which  he 
willingly  complied,  for,  as  he  states,  he  was  very  glad  to 
encourage  his  friends  and  manifest  to  them  his  good-will. 
The  two  forces  paused  about  fifty  paces  from  each  other, 
Champlain  being  some  twenty  paces  in  advance  of  his  party, 
armed  with  an  arquebus  into  which  he  had  put  four  balls. 
With  this  somewhat  unfair  advantage  in  his  favor,  he  waited 
until  the  enemy  prepared  to  shoot  their  arrows,  and  then 
fired  at  the  chiefs,  killing  two  and  wounding  one  of  their 
companions  fatally.  Flights  of  arrows  from  both  sides  fol- 
lowed, but  the  Iroquois  were  already  greatly  alarmed  at  the 
sudden  and  incomprehensible  death  of  the  two  chiefs,  for 
they  doubtless  saw  and  heard  firearms  for  the  first  time,  and 
as  while  Champlain  was  reloading,  one  of  his  companions 
fired  a  shot,  the  battle  was  ended.  The  astonished  Iroquois 
fled  in  dismay,  abandoning  their  field  and  fort  and  throwing 

99 


TICONDEROGA  AND  CROWN  POINT 

away  the  weapons  which  only  impeded  their  flight,  which 
were  afterwards  collected  by  the  conquerors.  Several  others 
were  killed,  and  ten  or  twelve  prisoners  taken,  but  no  wounded, 
as  these  were  carried  off  by  their  friends.  Of  Champlain's 
party  fifteen  or  sixteen  were  wounded  by  arrows,  but  all 
recovered.  The  victory  was  complete,  and  was  followed 
by  the  proceedings  usual  on  such  occasions  among  warriors 
whether  savage  or  civilized,  the  plundering  of  the  deserted 
camp,  and  the  celebration  of  the  event  by  feasting,  dancing, 
and  singing.  "The  place  where  this  battle  was  fought," 
says  Champlain,  "is  in  43  degrees  some  minutes  latitude, 
and  I  named  it  Lake  Champlain." 

A  very  different  spectacle  was  presented  in  the  same  month, 
nearly  one  hundred  and  fifty  years  later,  when  British  Regu- 
lars and  Colonial  Provincials  assembled  at  the  head  of  Lake 
George  in  "all  the  pomp  and  panoply  of  war,"  for  an  attack 
upon  the  French  position  at  Ticonderoga.  The  war  between 
the  French  and  the  English  had  so  far  resulted  decidedly  in 
favor  of  the  former,  who  were  extending  their  lines  and  en- 
croaching upon  the  British  territory  in  every  direction.  The 
inhabitants  of  the  colonies  were  deeply  incensed  at  what 
they  considered  the  indifference  and  carelessness  of  the  home 
authorities  in  failing  to  give  them  proper  protection,  and  the 
Government  had  at  last  been  aroused  to  the  necessity  of 
taking  some  active  measures. 

A  plan  of  campaign  was  formed  of  which  the  capture  of 
the  French  position  at  Ticonderoga  and  a  descent  upon 
Montreal  were  the  leading  features,  and  General  James 
Abercrombie,  who  had  succeeded  the  Earl  of  Loudon  as 

100 


TICONDEROGA  AND  CROWN  POINT 

Commander-in-chief  of  the  British  forces  in  North  America, 
upon  the  return  of  Pitt  to  power,  determined  to  lead  the 
expedition  in  person.  Not,  apparently,  having  full  faith  in 
his  capacity,  Pitt,  in  the  hope  of  providing  against  failure, 
selected  for  second  in  command  Lord  Howe,  who  was  given 
the  rank  of  Brigadier  General,  and  became  the  active  con- 
trolling spirit  of  the  undertaking.  He  has  been  described 
as  "  Lord  George  Augustus  Howe  —  the  leading  Englishman 
in  America  at  that  time  —  the  grandson  of  King  George  I  — 
the  special  favorite  of  William  Pitt,  Prime  Minister  of  Eng- 
land —  the  idol  of  the  army  and  beloved  in  England  and 
America." 

Abercombie  was  a  far  different  character.  Vain  of  his 
authority,  and  anxious  to  show  his  contempt  for  the  Provin- 
cials, his  first  act  was  to  promote  discord  among  the  troops 
by  announcing  that  all  the  regular  officers  would  outrank 
those  in  the  Provincial  service  of  the  same  grade.  The 
natural  result  was  that  animosities  arose,  many  of  the  men 
deserted,  and  some  officers  were  on  the  point  of  resigning 
their  commissions  and  retiring  from  the  service.  Aber- 
crombie  was  compelled  to  yield  the  point  and  agreed  that  the 
regulars  should  remain  and  do  duty  in  the  forts,  while 
the  Provincials  under  their  own  officers  advanced  against  the 
enemy.  The  bitter  jealousies  and  enmities  then  created  had 
strong  influence  a  few  years  later  in  the  strife  which  began 
at  Lexington  and  ended  at  Yorktown. 

Before  describing  the  expedition  against  Ticonderoga,  let 
us  see  the  character  of  the  place  to  be  attacked.  Du  Quesne 
advised  the  construction  of  works  at  that  point  in  the  summer 

101 


TICONDEROGA  AND  CROWN  POINT 

of  1755,  and  the  duty  was  entrusted  to  Lotbiniere,  an  en- 
gineer of  the  Province.  The  original  fort  was  square,  with 
four  bastions  built  of  earth  and  timber,  and  was  the  founda- 
tion of  Fort  Carillon.  It  is  not  known  at  what  time  the 
stone  works  whose  ruins  still  remain  were  erected,  but  in  the 
year  1758  the  French  were  energetically  engaged  in  enlarging 
and  strengthening  the  fort,  as  at  that  time  Crown  Point,  on 
account  of  its  less  favorable  position,  and  the  dilapidation  of 
Fort  Frederick,  seemed  to  them  of  secondary  importance. 
The  position  held  by  Montcalm,  who  was  in  command  of  the 
French  forces,  "was  a  narrow  and  elevated  peninsula,  washed 
on  three  sides  by  deep  waters  with  its  base  on  the  western  and 
only  accessible  side.  On  the  north  of  this  base  the  access 
was  obstructed  by  a  wet  meadow,  and  on  the  southern  ex- 
tremity it  was  rendered  impracticable  to  the  advance  of  an 
army  by  a  steep  slope  extending  from  the  hill  to  the  outlet. 
The  summit  between  these  two  points  was  rounded  and 
sinuous  with  ledges  and  elevations  at  intervals.  Here  and 
about  hah*  a  mile  in  advance  of  the  fort  Montcalm  traced  the 
line  of  his  projected  entrenchment.  It  followed  the  sinu- 
osities of  the  land,  the  sections  of  the  work  reciprocally 
flanking  each  other."  At  the  time  of  the  battle  these  en- 
trenchments were  from  eight  to  ten  feet  in  height,  con- 
structed of  logs,  and  in  front  of  them  for  a  distance  of  one 
hundred  yards  trees  were  felled  and  laid  with  their  branches 
outward. 

On  the  morning  of  the  5th  of  July,  1758,  the  head  of  Lake 
George  presented  a  magnificent  spectacle.  Around  the  ruins 
of  Fort  William  Henry  were  assembled  seven  thousand 

102 


British  troops  of  the  line,  and  about  ten  thousand  Provincials, 
including  the  best  and  bravest  of  both,  with  the  attendant 
hundreds  of  non-combatants,  forming  the  finest  army  up  to 
that  time  assembled  on  the  Western  Continent.  For  their 
transportation  to  Ticonderoga  a  flotilla  was  organized,  con- 
sisting of  nine  hundred  bateaux  and  one  hundred  and  thirty- 
five  whale  boats,  together  with  a  number  of  rafts  to  carry  the 
heavy  stores,  ammunition,  and  artillery.  On  a  beautiful 
clear  day  this  imposing  pageant  swept  down  the  lovely  lake 
with  the  sound  of  cheerful  voices,  the  rolling  of  the  drums, 
the  exhilarating  blare  of  the  trumpets,  and  the  weird  screech 
of  the  bagpipes  of  Lord  John  Murray's  Highlanders.  The 
landing  was  effected  at  noon  of  the  following  day  in  a  cove 
on  the  west  side  of  the  lake.  Here  the  troops  formed  in  four 
columns  and  began  the  advance,  without,  however,  their 
artillery  and  heavy  baggage,  which  had  to  be  left  behind  until 
the  bridges  which  had  been  burned  by  the  advance  guard 
of  the  enemy  in  their  retreat  could  be  rebuilt.  Abercrombie's 
intention  was  to  hurry  forward  and  carry  Ticonderoga  by 
storm  before  the  arrival  of  re-enforcements  which  were  sup- 
posed to  be  hastening  to  Montcalm's  relief.  But  the  dense 
woods  and  tangled  underbrush  rendered  progress  slow  and 
uncertain,  and  in  the  general  confusion  the  advance  guard 
encountered  a  body  of  the  enemy  under  De  Trepezee,  who 
had  lost  their  way.  In  the  skirmish  which  followed  Howe 
fell  at  the  head  of  his  men,  and  the  utter  route  of  the  French 
party  was  but  small  compensation  for  the  loss  of  the  brilliant 
leader.  A  solitary  barge,  in  striking  contrast  with  the  bril- 
liant display  of  the  preceding  day,  is  said  to  have  borne  his 

103 


TICONDEROGA  AND  CROWN  POINT 

corpse  back  to  Fort  William  Henry,  whence  it  was  taken  to 
Albany  for  interment  in  St.  Peter's  Church,  while  it  is  also 
stated  with  equal  persistency  that  his  body  was  buried  on 
the  field  of  battle,  where  his  remains  are  said  to  have  been 
discovered  a  few  years  ago.  "The  death  of  Howe  paralyzed 
the  army.  With  him  expired  its  spirit,  its  confidence  and 
hope;  all  afterwards  was  prompted  by  imbecility,  indecision, 
and  folly."  Abercrombie  withdrew  his  army  the  next  morn- 
ing to  the  landing-place,  but  while  he  was  hesitating,  Colonel 
Bradstreet  with  Rogers  and  some  four  hundred  rangers, 
pushed  forward,  rebuilt  the  bridges  and  took  possession  of 
some  sawmills  which  the  French  had  erected  at  the  lower 
rapids  about  two  miles  from  Ticonderoga.  Thus  encour- 
aged, Abercrombie  moved  his  army  to  the  sawmills  and  sent 
forward  his  engineer,  Clerk,  and  John  Stark,  who  was  with 
the  Provincial  troops,  to  examine  the  enemy's  works.  The 
party  returned  at  dusk,  and  Clerk  reported  that  the  works 
would  offer  only  feeble  resistance  to  a  charge  of  the  British 
bayonet,  but  the  more  experienced  Stark  was  of  a  very  differ- 
ent opinion.  His  advice  was  rejected  by  the  General  as  that 
of  an  ignorant  Provincial,  unacquainted  with  British  prowess, 
and  orders  were  issued,  early  on  the  morning  of  the  8th, 
to  advance  without  artillery  and  carry  the  enemy's  works  at 
the  point  of  the  bayonet. 

It  is  asserted  that  it  was  Montcalm's  intention  to  evacuate 
Ticonderoga  without  awaiting  an  attack,  as  he  thought  it 
untenable,  and  that  he  did  not  decide  upon  a  vigorous  de- 
fense until  the  morning  of  the  battle.  His  entire  force  of 
fighting  men  was  two  thousand  nine  hundred  and  ninety-two, 

104 


TICONDEROGA  AND  CROWN  POINT 

and  of  these  four  hundred  and  fifty  were  irregular  troops, 
who  occupied  the  abattis  in  front  of  the  works.  De  Levis 
was  placed  on  the  right  with  three  regiments,  —  De  Boula- 
marque  held  the  left  with  an  equal  force,  while  Montcalm 
occupied  the  centre  with  three  battalions.  The  declivity 
towards  the  outlet  was  guarded  by  two  companies.  Behind 
each  battalion  was  stationed  in  reserve  a  company  of  grena- 
diers. Work  on  the  entrenchments  was  resumed  at  daybreak, 
but  at  the  preconcerted  signal  (an  alarm  gun),  the  troops  left 
their  labors  and  assumed  their  respective  stations  under  arms. 
Montcalm  threw  off  his  coat,  and,  forbidding  his  men  to  fire 
a  musket  until  he  should  give  the  word,  calmly  awaited  the 
approach  of  the  enemy. 

It  was  not  a  battle,  but  a  massacre.  Entangled  in  the 
trees,  confronted  by  lines  of  works  too  high  to  climb,  sub- 
jected to  a  withering  and  murderous  fire  from  swivels  and 
muskets,  the  troops  held  their  ground  with  determined  valor. 
"  But,"  says  Mr.  Smith,  in  his  history  of  Essex  County,  "  they 
heard  no  command  to  retreat,  —  they  had  received  their 
orders  to  advance,  and  although  they  could  not  surmount 
the  works  they  could  die  in  front  of  them.  .  .  .  The  assault 
was  hopeless  from  the  beginning,  and  while  its  bloody  scenes 
were  being  enacted  under  the  watchful  eye  of  the  brilliant 
French  general,  Abercrombie  looked  after  the  welfare  of  his 
noble  person  amid  the  security  of  the  sawmills  two  miles 
from  the  battlefield."  After  enduring  the  enemy's  fire  with- 
out flinching  for  five  hours,  the  troops  retreated  in  the  utmost 
disorder,  having  lost  in  killed  and  wounded  nineteen  hundred 
and  sixty-seven  men. 

105 


TICONDEROGA  AND  CROWN  POINT 

The  British  had  still  some  twelve  thousand  men  with  plenty 
of  artillery,  but  their  general  was  thoroughly  alarmed,  and 
retreated  during  the  night  to  the  landing,  leaving  orders  for 
the  army  to  follow  him  there.  On  their  arrival  the  next 
morning,  this  army  of  lions,  led  by  a  stag,  was  seized  with  a 
sudden  panic  and  would  have  rushed  into  the  bateaux  and 
sunk  many  of  them,  had  not  Colonel  Bradstreet  by  his  cool- 
ness and  presence  of  mind  prevented  such  a  disaster.  Aber- 
crombie,  it  is  said,  did  not  breathe  freely  until  Lake  George 
was  between  himself  and  the  enemy,  and  his  artillery  and 
ammunition  fairly  on  the  way  to  Albany.  That  pursuit  did 
not  follow  was  due  to  the  feebleness  of  the  enemy,  and  the 
impracticability  of  traversing  the  forest  without  Indian  guides, 
which  Montcalm  did  not  have.  De  Levis  went  over  the 
track  of  Abercrombie's  army  on  the  morning  of  the  10th,  and 
found  only  the  vestiges  of  a  routed  host. 

"Abercrombie  returned  to  England,"  says  Bancroft, 
"evaded  censure;  was  gladdened  by  promotion,  and  lived 
to  vote  as  a  member  of  parliament  for  the  taxation  of  a 
country  which  his  imbecility  might  have  lost,  and  which 
was  always  the  object  of  his  malignant  aspersions." 

The  decisive  blow  was  struck  the  next  year  by  a  very 
different  man.  General  Amherst,  who  had  captured  Louis- 
bourg  on  July  16,  1758,  learning  of  the  fatal  issue  of  Aber- 
combie's  campaign,  with  an  unwonted  ardor,  without  waiting 
for  orders,  embarked  four  or  five  regiments  and  sailed  with 
them  to  Boston.  On  his  arrival  he  at  once  commenced  a 
march  through  the  forest  to  Lake  George,  which  he  reached 
in  person  in  October.  In  November  he  assumed  command, 

106 


TICONDEROGA  AND  CROWN  POINT 

Abercrombie  having  been  recalled,  and  he  appointed  Com- 
mander-in-Chief. 

Of  him,  Watson  in  his  history  of  Essex  County  says, 
"Amherst,  without  any  claim  to  brilliancy  or  genius,  was 
calculated  to  command  success  by  the  excellence  of  his  judg- 
ment, his  prudent  circumspection,  and  persevering  firmness. 
His  character  and  policy  had  secured  to  him  the  respect  and 
confidence  of  the  colonies.  His  measures  were  not  stimu- 
lated by  the  arrogance  of  Braddock,  nor  trammeled  by  the 
feebleness  and  indecision  of  Abercrombie,  nor  dishonored  by 
the  pusillanimity  of  Webb." 

As  the  season  was  too  far  advanced  for  active  operations 
when  Amherst  received  his  promotion,  it  was  not  until  in 
May  of  1759  that  he  began  his  preparations  at  Albany, 
obtaining  boats,  gathering  stores,  and  drilling  the  new  re- 
cruits. He  reached  Lake  George  with  an  army  of  about 
eleven  thousand  men  in  June,  and  late  in  July  it  moved 
down  the  lake  in  four  columns,  in  a  fleet  of  whale  boats, 
bateaux  and  artillery  rafts,  and  left  the  boats  nearly  opposite 
the  former  landing-place.  The  army  advanced  rapidly  on 
the  road  to  the  falls,  meeting  and  scattering  after  a  short 
skirmish  a  force  of  French  and  Indians,  and  the  main  body 
took  a  position  at  the  sawmills.  From  prisoners  captured 
it  was  learned  that  Montcalm  was  at  Quebec,  where  that 
gallant  officer  met  a  soldier's  death  on  the  13th  of  September 
following,  and  that  Boulamarque  commanded  at  Ticonderoga 
with  thirty-four  hundred  men.  The  French  withdrew  into 
the  fort,  and  made  a  show  of  resistance  for  several  days  while 
they  completed  their  preparation  for  evacuating  the  position. 

107 


TICONDEROGA  AND  CROWN  POINT 

During  the  night  of  the  25th  of  July  an  explosion  took  place 
and  the  light  of  the  burning  works  showed  the  retreat  of  the 
French.  Colonel  Haviland  pursued  them  down  the  lake  with 
a  few  troops  and  took  sixteen  prisoners  together  with  some 
boats  laden  with  powder.  Amherst  slowly  prepared  to 
attack  Crown  Point,  and  sent  Rogers  with  his  rangers  to 
reconnoitre.  But  on  the  1st  of  August  they  learned  that  the 
French  had  abandoned  that  fort,  and  on  the  16th  that  Boula- 
marque  with  his  troops  was  encamped  at  the  Isle  au  Noix  at 
the  northern  extremity  of  Lake  Champlain,  commanding  the 
entrance  to  the  Richelieu.  The  final  conquest  of  Ticonderoga 
and  Crown  Point  was  achieved  with  only  the  loss  of  Amherst's 
Adjutant  General  Townsend,  a  brilliant  officer,  and  about 
eighty  men. 

The  long  struggle  was  ended.  The  fall  of  Quebec  the  next 
month  left  the  French  in  possession  only  of  Montreal  and 
Detroit  and  a  few  scattered  posts  along  the  frontier,  and  these 
last  traces  of  dominion  vanished  the  next  year,  with  Amherst 
in  Montreal  and  Rogers  in  Detroit.  From  the  bay  where 
Hendrik  Hudson  moored  the  little  Half  Moon,  throughout 
the  length  of  the  lordly  river  to  which  he  gave  his  name, 
across  the  carry  to  the  lovely  lake  which  testifies  to  Sir  William 
Johnson's  loyalty  to  his  royal  master,  passing  the  gateway  of 
Ticonderoga  into  the  great  inland  sea  which  Champlain 
discovered  and  explored,  through  the  winding  channel  of  the 
Richelieu  to  the  St.  Lawrence,  and  down  its  broad  pathway 
to  the  sea,  the  lilies  of  France  were  forever  submerged  beneath 
the  waters,  and  the  crosses  of  Great  Britain  everywhere 
floated  in  triumph. 

108 


NEW  YORK  IN   1801 

A  PAPER  PREPARED  AT  THE  REQUEST  OF  THE 
COLONIAL  ORDER  OF  THE  ACORN,  DESCRIP- 
TIVE OF  THE  ACCOMPANYING  ENGRAV- 
ING, AND  PRIVATELY  PRINTED  BY 
THE  ORDER  IN  MAY,  1904 


NEW  YORK  IN   1801 

THE  picture  presented  to  us  shows  little  with  which  we 
are  familiar  on  either  side  of  the  river.  The  fishermen 
on  the  Long  Island  shore  would  now  find  small  opportunity 
to  pursue  their  vocation  in  front  of  the  warehouses,  amid  the 
puffing  tugs  and  steamers  and  beneath  the  lofty  bridge  which 
occupy  the  then  vacant  space,  while  their  vision  would  be 
surprised  by  the  equally  impressive  towering  buildings  and 
massive  wharves  which  have  replaced  the  old  structures  of 
New  York.  Even  the  few  church  spires  which  then  formed 
such  prominent  features  of  the  landscape,  and  which  still  remain 
in  the  lower  part  of  the  city,  are  so  dwarfed  by  their  surround- 
ings as  to  be  barely  discernible.  But  at  this  time  these  were 
so  conspicuous  as  to  be  the  first  objects  to  attract  our  atten- 
tion. First  and  most  obvious  to  the  sight  is  Trinity  Church 
at  the  head  of  Wall  Street,  its  steeple  dominating  all  the  others, 
being  on  the  building  erected  in  1788  to  replace  the  one 
destroyed  by  fire  during  the  Revolution,  to  be  in  its  turn 
taken  down  to  make  room  for  the  present  stately  edifice  con- 
secrated in  May,  1846.  The  spire  next  on  the  right  I  imagine 
to  belong  to  the  Presbyterian  Church  in  Wall  Street,  near 
Broadway,  which  was  built  in  1719  and  enlarged  in  1748. 
Rebuilt  on  a  greater  scale  in  1810,  it  was  destroyed  by  fire  in 

111 


NEW  YORK  IN   1801 


1834,  restored  the  following  year,  and  occupied  until  1844, 
when  it  was  taken  down,  the  congregation  having  acquired  a 
new  site  on  Fifth  Avenue,  between  Eleventh  and  Twelfth 
streets,  which  it  still  occupies.  Immediately  to  the  north  of 
the  Wall  Street  Presbyterian  Church  stood  the  Scotch  Cov- 
enanters Church,  on  the  south  side  of  Cedar  Street,  and  its 
steeple  is  probably  the  northerly  one  of  the  three  clustered 
together,  but  the  latter  may  be  that  of  the  Middle  Dutch 
Church  on  Nassau  and  Cedar  streets,  on  the  ground  now 
occupied  by  the  building  of  The  Mutual  Life  Insurance 
Company  of  New  York.  Next,  to  the  right,  appears  the 
spire  of  the  North  Dutch  Church,  completed  and  opened 
for  public  worship  on  May  25,  1769,  a  fine  stone  building 
measuring  100  feet  by  70,  on  the  corner  of  William  and 
Fulton  streets.  Almost  up  to  this  time  the  services  in  the 
Dutch  Reformed  Churches  had  been  held  in  the  mother 
tongue,  but  the  increasing  use  of  the  English  language  had 
become  so  marked,  especially  among  the  younger  people, 
that  it  became  necessary  to  make  a  change,  and  in  1764 
English  was  used  in  the  Middle  Church,  to  the  great  wrath 
of  the  elderly  conservatives.  Dutch,  however,  continued 
the  language  in  the  South  or  Garden  Street  Church 
until  1803. 

Passing  on  to  the  right,  the  next  tall  spire  is  that  of  St. 
Paul's  Church,  erected  in  1766,  where,  during  the  days  of  the 
English  occupation  of  the  city,  Major  Andre,  Lord  Howe,  and 
Sir  Guy  Carleton  attended  the  services,  and  with  them  the 
English  Midshipman,  who  afterwards  became  William  IV. 
Immediately  after  his  inauguration  as  first  president  of  the 

112 


NEW  YORK  IN   1801 


United  States,  Washington,  together  with  all  the  civil  and 
military  dignitaries  who  had  graced  the  occasion,  repaired 
thither  for  public  worship,  and  during  his  residence  in  the 
city  he  retained  a  pew  there  and  constantly  attended  the  ser- 
vices. It  has  frequently  since  been  the  scene  of  stately  cere- 
monies, not  the  least  imposing  of  which  were  the  funeral 
services  held  under  the  auspices  of  the  Sons  of  the  Revolution 
in  honor  of  the  late  President  McKinley  on  the  18th  of  Sep- 
tember last. 

The  eye  rests  next  upon  the  Brick  Church  then  standing  at 
the  corner  of  Beekman  and  Nassau  streets,  upon  ground 
which  is  now  partly  occupied  by  the  building  of  the  New 
York  Times,  and  which  was  built  in  1768  in  the  fields  and 
quite  out  of  town.  During  the  Revolution  it  was  used  as  a 
hospital,  but  restored  to  ecclesiastical  purposes  thereafter  and 
continued  as  a  place  of  worship  until  1854,  when  the  congre- 
gation removed  to  their  present  building  at  the  corner  of 
Fifth  Avenue  and  Thirty-Seventh  Street.  It  remained  for 
years  a  branch  of  the  Presbyterian  Church  in  Wall  Street, 
and  the  formal  separation  and  its  erection  to  the  dignity  of 
an  independent  church  did  not  occur  until  1809. 

Last  on  our  list  towers  the  spire  of  St.  George's  Church, 
on  the  Chapel  Hill  at  the  corner  of  Beekman  and  Cliff  streets, 
built  in  1748  as  a  chapel  of  Trinity  Church,  and  made  an  in- 
dependent organization  in  1809.  In  1846  Mr.  Peter  G. 
Stuyvesant  gave  the  church  some  lots  of  ground  on  Ruther- 
ford Place  and  Sixteenth  Street,  sufficient  for  a  new  church 
and  rectory,  and  the  parish  erected  buildings  on  that  site 
which  it  still  occupies. 

113 


NEW  YORK  IN   1801 


This  brief  review  of  the  church  steeples  shown  in  our 
picture  makes  it  clear  that  our  fathers  did  not  lack  oppor- 
tunities for  religious  instruction  and  worship,  and  justifies 
the  remark  of  Mr.  Felix  Oldboy  when  he  terms  the  New  York 
of  that  day  "the  paradise  of  churches." 

Having  considered  the  ecclesiastical  buildings  with  suffi- 
cient fulness  we  may  properly  turn  our  attention  to  the  more 
worldly  features  of  the  landscape,  but  I  cannot  attempt  with 
any  confidence  to  identify  the  other  buildings  shown.  I  am 
inclined  to  think  that  the  high  roof,  to  the  right  of  Trinity 
and  the  two  other  steeples,  covers  the  new  City,  afterwards 
Federal,  Hall,  which  stood  on  the  north  side  of  Wall  Street, 
opposite  Broad  Street,  extending  across  what  is  now  Nassau 
Street,  but  I  do  not  venture  to  speak  with  certainty.  Fraunce's 
Tavern,  the  City  Hotel,  the  Tontine  Building,  the  Golden 
Hill  Inn,  and  many  other  landmarks  of  the  old  city,  are 
doubtless  there  but  cannot  be  recognized.  South  Street  had 
not  then  been  reclaimed  from  the  river,  and  Water  Street  was 
the  city's  front  on  the  East  side  —  along  it  was  extended  the 
shipping  of  the  port,  as  the  North  River,  with  its  width  and 
direct  continuation  of  the  bay,  was  thought  to  afford  only  an 
unsafe  and  hazardous  anchorage.  Along  the  wharves  from 
the  Battery  to  Peck  Slip  the  ships  lay  at  the  wharves,  or  at 
anchor  in  the  river,  and  above  were  the  shipyards,  then 
scenes  of  busy  industry.  Here  and  there  were  receiving 
docks,  as  at  Coenties  Slip,  Wall  Street,  and  Maiden  Lane, 
which  were  afterwards  filled  up  to  make  the  broad  spaces 
which  are  now  found  at  the  foot  of  those  streets.  The  Fly 
Market,  so  called,  a  corruption  of  V'lei  or  Valley,  from  a 

114 


NEW  YORK  IN   1801 


stream  which  ran  through  Maiden  Lane,  the  favorite  location 
for  the  laundry  work  of  our  mothers,  consisted  of  three 
market  houses  on  that  street,  extending  from  Pearl  Street  to 
the  river,  and  from  the  slip  connected  with  it  a  ferry  ran  to 
Brooklyn. 

Before  passing  to  the  consideration  of  the  general  condition 
of  the  city  at  that  time,  our  engraver  deserves  a  moment's 
attention.  "Engraving,"  says  Gen.  James  Grant  Wilson, 
in  his  Memorial  History  of  the  city  of  New  York  (Vol.  IV, 
p.  357),  "did  not  antedate  sculpture  in  its  artistic  and  tech- 
nical development,  although  a  number  of  engravers,  most  of 
them  foreigners,  began  to  practise  their  calling  in  this  city 
in  the  last  decade  of  the  Eighteenth  Century,"  and  among 
the  names  he  mentions  as  prominent  in  the  art  at  that  time 
is  that  of  William  Rollinson,  by  whom  the  engraving  before 
us  was  made.  The  artist  who  prepared  the  drawing,  John 
Wood,  has  not  handed  down  his  fame  to  posterity  in  any 
other  work  than  this,  so  far  as  I  can  ascertain.  The  plate 
is  most  accurately  and  artistically  engraved  and  will  bear  the 
closest  examination  under  the  most  powerful  glasses. 

The  city  of  our  homes  and  our  love  arose  from  the  destruc- 
tion of  the  Revolutionary  period  like  a  phenix  from  its  ashes. 
With  her  population  scattered,  her  commerce  destroyed,  most 
of  her  buildings  burned,  ruin  and  desolation  on  every  hand, 
she  went  to  work  with  undaunted  courage,  unrivaled  energy, 
and  far-seeing  sagacity,  immediately  upon  the  withdrawal 
of  the  British  troops  in  1783,  to  rebuild  the  Metropolis  of  the 
West.  The  fact  that  she  became  the  seat  of  the  new  govern- 
ment was  unquestionably  a  strong  factor  in  her  favor,  and  in 

115 


NEW  YORK  IN   1801 


1801  she  had  already  acquired  a  population  of  between  fifty 
and  sixty  thousand.  An  estimate  of  the  funds  required  for 
the  support  of  the  city's  institutions  for  the  year  1800,  which 
has  been  preserved  by  General  Wilson,  gives  us  a  good 
idea  of  the  responsibilities  the  city  authorities  of  those  days 
had  to  bear,  and  forms  a  marvelous  contrast  to  the  budget  of 
the  present  city.  For  the  almshouse  the  sum  of  thirty  thou- 
sand dollars  was  needed,  an  amount  which  seems  dispro- 
portionately large,  and  which  may  have  been  in  some  degree 
attributable  to  the  losses  incurred  in  the  Revolution  by  those 
who  were  too  old  or  too  helpless  to  restore  their  fortunes. 
For  the  Bridewell  or  Workhouse  five  thousand  dollars  was 
required,  and  for  the  support  of  the  prisoners  three  thousand 
dollars  was  appropriated.  In  view  of  the  cost  of  our  present 
police  system,  the  maintenance  of  the  watch  for  twenty-five 
thousand  dollars  seems  idyllic,  as  does  an  appropriation  of 
five  thousand  dollars  for  streets.  To  this  list  must  be  added 
other  items  which  seem  properly  to  belong  to  the  same  sub- 
ject, such  as  lamps  to  cost  fifteen  thousand  dollars  for  being 
kept  in  order  and  lighted  on  nights  when  there  was  no  "  light 
moon,"  and  wells  and  pumps,  for  fire  and  domestic  purposes, 
for  which  twenty-five  thousand  dollars  were  needed.  The 
Manhattan  Company,  which  had  been  chartered  the  year 
before,  had  already  gone  into  the  banking  business  under  its 
charter,  but  had  done  very  little  in  the  line  of  its  ostensible 
purpose  of  supplying  the  city  with  fresh  water.  For  roads 
about  the  city  seventy-five  hundred  dollars  were  appropriated. 
But  even  in  those  days,  which  so  many  people  who  know 
little  about  them  consider  purer  and  better  than  these  so  far 

116 


NEW  YORK  IN   1801 


as  politics  and  politicians  are  concerned,  our  predecessors 
showed  their  appreciation  of  the  advantages  to  be  derived 
from  the  useful  application  of  money  by  making  appropriations 
for  "Contingencies"  of  twenty-nine  thousand  four  hundred 
and  fifty  dollars,  and  for  "City  Contingencies"  of  seventy- 
five  hundred  dollars,  moneys  doubtless  intended  to  be  applied 
where  they  would  do  the  most  good,  as  the  contingencies 
might  arise. 

The  city  then  occupied  only  the  lower  end  of  the  Island. 
The  Battery  was  the  favorite  promenade.  Many  of  the 
prominent  merchants  lived  along  State  Street  and  in  Pearl 
Street  over  their  stores.  The  banks  and  financial  institu- 
tions were  in  Wall  Street,  where  also  resided  many  of  our 
ancestors,  and  their  wives  went  shopping  in  William  Street. 

The  only  theatre  was  the  one  on  Park  Row,  between  Ann 
and  Beekman  Streets,  called  the  Park  Theatre,  which  was 
opened  in  1798,  and  there  appear  to  have  been  no  other 
public  amusements.  There  was  much  social  life,  but  con- 
sidering the  proportion  of  the  number  of  churches  to  the 
population,  these  must  have  afforded  the  principal  oppor- 
tunities for  social  gatherings.  I  have  enumerated  those 
conspicuous  by  their  steeples,  but  there  were  many  others, 
such  as  the  Garden  Street  (or  Exchange  Place)  Church,  Grace 
Church  on  the  corner  of  Rector  Street  and  Broadway,  where 
the  Empire  Building  now  towers,  the  French  Church  in  Pine 
Street,  Christ  Church  in  Ann  Street,  and  St.  Peter's  in  Bar- 
clay Street  built  in  1786,  the  home  of  the  oldest  Roman 
Catholic  congregation  in  the  city. 

I  can  find  no  words  to  conclude  this  brief  sketch  better  or 
117 


NEW  YORK  IN   1801 


more  appropriate  than  those  used  by  the  President  of  the 
United  States  in  his  "New  York,"  pp.  166-167.  Says  Mr. 
Roosevelt,  speaking  of  this  period,  very  characteristically, 
"the  divisions  between  the  upper,  lower,  and  middle  classes 
were  sharply  marked.  The  old  families  formed  a  rather 
exclusive  circle,  and  among  the  large  land  owners  still  claimed 
the  lead,  though  the  rich  merchants,  who  were  of  similar 
ancestry,  much  outnumbered  them,  and  stood  practically  on 
the  same  plane.  But  the  days  of  this  social  and  political 
aristocracy  were  numbered.  They  lost  their  political  power 
first.  .  .  .  The  fall  of  this  class,  as  a  class,  was  not  to  be 
regretted,  for  its  individual  members  did  not  share  the  gen- 
eral fate,  unless  they  themselves  deserved  to  fall.  The 
descendant  of  any  old  family  who  was  worth  his  salt  still  had 
as  fair  a  chance  as  any  one  else  to  make  his  way  in  the  world 
of  politics,  of  business,  or  of  literature;  and  according  to  our 
code  and  standard,  the  man  who  asks  more  is  a  craven." 


118 


MYSTERIOUS  DISAPPEARANCES  AND 
PRESUMPTIONS  OF  DEATH 
IN   INSURANCE  CASES 

PAPERS  READ   BEFORE   THE   MEDICO-LEGAL 
SOCIETY  OF  NEW  YORK 


MYSTERIOUS  DISAPPEARANCES,  AND  PRESUMP- 
TIONS OF  DEATH  IN  INSURANCE  CASES 

PART  I 

IN  looking  over  the  titles  of  the  papers  which  have  been 
read  from  time  to  time  before  this  society,  I  observe  that  it 
has  exercised  a  most  catholic  toleration  towards  their  authors, 
and  allowed  them  to  treat  of  any  subject  which  appeared  to 
be  even  remotely  connected  with  the  object  of  its  existence. 
An  especially  favorite  topic  seems  to  have  been  suicide,  and 
the  always  interposed  plea  of  insanity  in  life  insurance  cases; 
and  with  that  fact  in  view,  I  do  not  feel  that  I  am  asking  too 
much  indulgence  when  I  invite  your  attention  to  another 
class  of  frauds  perpetrated  upon  companies  engaged  in  that 
business ;  and  even  if  my  discourse  is  not  sufficiently  profound 
to  entitle  it  to  rank  with  the  many  able  and  thoughtful  papers 
which  have  been  read  before  this  body,  it  is  well  to  remember 
that  the  bow  of  Apollo  was  not  always  stretched,  and  that  it 
is  good  sometimes  to  unbend,  and  waive  instruction  in  favor 
of  entertainment. 

Before  entering  upon  my  subject,  permit  me  for  a  moment 
to  advert  to  the  unreasonable  nature  of  the  charge  now  so 
frequently  made  against  life  insurance  companies,  that  they 
seize  every  pretext  to  resist  the  payment  of  a  claim;  and 

121 


MYSTERIOUS  DISAPPEARANCES  AND 

complaint  is  especially  made,  that  after  receiving  premiums 
for  years  they  will,  when  death  occurs,  object  that  some  false 
statement  has  been  made  in  the  application  which  avoids  the 
policy.  To  the  careless  and  unthinking  such  conduct  does 
appear  to  be  reprehensible,  and  it  would  seem  at  first  sight 
that  companies  should  make  their  initiatory  examination  so 
rigid  and  thorough,  that  after  the  applicant  has  once  been 
accepted,  a  policy  issued  to  him,  and  his  premiums  regularly 
paid  and  received  for  a  series  of  years,  they  should  be  con- 
cluded by  their  action,  and  estopped  from  raising  any  ques- 
tion as  to  the  physical  or  moral  condition  of  the  insured  at  the 
time  of  the  examination.  So  attractive  is  this  idea  to  those 
who  have  merely  glanced  at  the  superficial  aspect  of  the 
question,  that  the  legislature  of  a  Western  State,  a  few  years 
since,  solemnly  enacted  that  after  a  policy  had  been  issued 
on  a  life,  and  the  premiums  regularly  paid  for  three  years,  no 
defense  should  be  interposed  by  the  company  in  an  action 
on  the  policy  on  the  ground  of  misrepresentations  made  in 
the  application.  Unfortunately  for  the  object  which  these 
modern  Solons  had  in  vew,  their  respect  for  the  principles  of 
the  Common  Law  compelled  them  to  add,  except  in  cases  of 
fraud,  and  as  that  defense  would  be  made  by  a  company  only 
in  such  cases,  the  statute  avoids  itself.  The  constitutional 
prohibition  of  the  enactment  by  any  State  of  an  act  impairing 
the  obligation  of  contracts  would  probably  render  such  a 
statute  worthless;  but  the  one  thus  cited  is  curious  as  showing 
the  endeavor  of  the  legislators  to  remedy  what  they  considered 
a  wrong,  and  yet  what  they  were  obliged  to  confess  that  they 
considered  a  right.  For  the  insurer  of  a  life  stands  in  a  very 

122 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

different  position  from  him  who  insures  a  house;  the  latter 
may  examine  his  risk  carefully  and  thoroughly  —  he  may 
measure  its  distance  from  adjoining  buildings,  the  nature  of 
the  walls  between  it  and  them,  the  internal  supports,  the  ar- 
rangement of  the  heating  apparatus,  the  character  of  the  roof, 
the  probability  of  total  or  partial  loss  in  case  of  fire,  the 
efficiency  of  the  department  on  which  he  must  depend  for  the 
extinction  of  a  conflagration,  the  nature  of  the  business  car- 
ried on  in  it  and  adjacent  buildings,  and  every  conceivable 
element  which  enters  into  the  calculation  of  his  risk.  They 
are  all  existent  patent  to  his  investigation,  and  it  is  his  own 
fault  if  he  does  not  enter  into  his  contract  with  a  clear  and 
perfect  understanding  of  the  risk  which  he  assumes.  With 
the  insurer  of  life  the  case  is  very  different.  Certain  elements 
of  the  calculation  are  of  course  within  his  reach.  He  can 
estimate  properly  the  influence  of  the  climate  in  which  the 
proposed  life  dwells,  the  hazard  of  his  occupation,  the  especial 
diseases  to  which  his  locality  is  exposed,  and  the  average 
length  of  human  life.  From  all  these  facts  he  can  deduce  a 
table  of  life  which  will  enable  him  to  rate  exactly  the  cost  of 
insuring  the  theoretical  man.  But  when  he  comes  to  carry 
his  theories  into  practise,  he  has  in  reality  no  means  of  ascer- 
taining whether  the  life  proposed  reaches  the  average  stand- 
ard, but  from  the  statements  made  to  him  by  that  proponent. 
The  medical  gentlemen  who  honor  me  with  their  attention 
know  very  well  that  there  may  be  inherited  or  even  acquired 
tendencies  toward  certain  diseases,  which  no  physical  exam- 
ination will  detect,  and  against  which  the  insurer  can  be 
warned  only  by  a  true  and  accurate  family  history.  The 

123 


MYSTERIOUS  DISAPPEARANCES  AND 

tremendous  influence  over  the  question  of  life  or  death  which 
is  wielded  by  such  tendencies,  by  habit,  by  temperament,  is 
an  important  factor  in  every  calculation  upon  a  single  life, 
and  cannot  be  properly  estimated  unless  every  circumstance 
or  fact  which  the  insurer  desires  to  know  is  stated  to  him  fully 
and  accurately.  I  have  in  my  mind  at  this  moment  a  case  in 
which  the  applicant  for  insurance  presented  a  clear,  unques- 
tionable record.  One  sister  had  died  of  yellow  fever  —  it 
was  true,  but  he  omitted  to  add  that,  had  the  fever  spared 
her,  she  would  have  died  of  consumption  within  six  months. 
Another  sister  died  of  suppressed  menses  —  it  was  also  true, 
but  he  omitted  to  state,  that  vicarious  menstruation  ensued 
from  the  lungs,  and  caused  her  speedy  death.  So  with 
several  other  members  of  his  family,  who,  with  well  developed 
phthisis,  had  actually  died  from  other  causes.  The  applicant 
himself  was  apparently  sound,  and  physical  exploration 
failed  to  discover  any  symptoms  of  disease,  yet  his  death 
within  a  year  from  consumption  showed  that  he  must  have 
had  strong  tendencies  towards  that  disease,  and  investigation 
developed  the  facts  I  have  detailed.  As  is  usual  in  such 
cases  no  ground  of  suspicion  was  presented  until  the  death 
occurred.  Then  the  very  fact  of  such  a  death  showed  that 
misrepresentations  must  have  been  made,  and  not  until 
suspicion  was  thus  aroused  was  such  an  investigation  deemed 
desirable.  It  is  practically  impossible  to  verify  at  the  outset 
every  statement  made  by  an  applicant  for  life  insurance,  and 
as  he  knows,  and  from  the  nature  of  the  case  must  know,  the 
truth  or  falsity  of  what  he  alleges,  it  is  only  just  that  those 
claiming  under  him  should  be  bound  by  his  representations. 

124 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

If  his  death  occur  from  a  cause  or  under  circumstances  in- 
consistent with  his  statements,  the  insurer  is,  for  the  first 
time,  informed  that  those  statements  were  false,  and  is  justi- 
fied, both  in  law  and  in  good  morals,  in  resisting  a  demand 
based  upon  a  contract  into  which  he  was  led  by  the  misrepre- 
sentations of  the  contracting  party  upon  whom  he  relied. 

Yet,  when  we  consider  the  magnitude  of  the  business  of 
life  insurance  in  this  country,  it  is  suprising  to  see  how  few 
cases  are  contested  compared  with  the  immense  number  which 
are  paid  without  a  question,  although  many  of  the  latter  are 
doubtless  tainted  with  fraud. 

From  the  last  report  (April,  1875)  of  the  Insurance  Super- 
intendent of  this  State,  I  find  that  fifty  American  companies 
reported  to  him  in  detail  their  business  for  the  previous  year. 
During  that  period  these  companies  returned  to  their  policy- 
holders  in  payments  for  death-claims,  and  lapsed  or  surren- 
dered policies,  over  forty-eight  millions  of  dollars,  while  the 
entire  amount  reported  as  in  litigation  was  but  little  over  one 
million.  That  is  to  say,  the  total  amount  of  claims  disputed 
for  every  cause,  and  many  of  which  had  been  pending'  for 
years,  was  only  a  trifle  more  than  two  per  cent  of  the  sum 
paid  to  their  customers  in  a  single  year.  The  bare  statement 
shows  the  absurdity  of  the  pretense  that  these  companies 
prefer  to  dispute  claims  upon  them,  and  it  may  fairly  be 
added  that  no  solvent  company  ever  resists  a  demand  willingly. 
No  matter  how  just  the  resistance  may  be,  or  how  bare-faced 
the  fraud  which  may  be  attempted,  the  fact  of  the  resistance 
is  all  that  strikes  the  popular  attention,  and  it  is  made  a 
handle  for  attack  and  abuse.  Were  it  not  that  the  officers 

125 


MYSTERIOUS  DISAPPEARANCES  AND 

of  these  companies  are  usually  honorable  and  high-minded 
men,  who  properly  appreciate  the  sacredness  of  their  trust 
and  their  duty  to  their  honest  policy-holders,  we  should  hear 
nothing  of  contested  claims,  and  a  grand  field  would  be  open 
to  modern  rascality. 

It  must  be  noted  that  this  statement  of  litigated  claims 
includes  every  variety  of  demand,  from  that  based  upon  a 
doubtful  point  of  law  to  that  resting  upon  the  most  out- 
rageous fraud. 

If  this  digression  has  answered  no  other  purpose,  I  trust 
it  may  have  shown  that  while  life  insurance  companies  are 
extremely  averse  to  litigation,  they  are  peculiarly  exposed  to 
frauds,  and  prepared  the  way  for  the  consideration  of  the 
particular  class  of  rascalities  to  which  I  invite  your  attention. 

The  number  of  people  who  live  by  their  wits  depends  upon 
the  state  of  civilization  of  the  country  in  which  they  exist 
and  increases  pari  passu  with  the  latter.  When  man,  as  in 
his  primeval  state,  is  utterly  dependent  upon  his  own  exer- 
tions, and  must  kill  and  cook  his  own  dinner  or  go  without  it, 
rogues  have  no  field  for  their  operations;  but  with  the  increase 
of  mutual  dependency,  and  the  accretion  of  individual  or 
corporate  wealth,  comes  the  opportunity  for  its  fraudulent 
attainment.  With  the  opportunities  which  life  insurance 
companies  offer  for  a  heavy  insurance  and  a  simulated  death, 
it  is  singular  that  this  field  has  not  been  more  freely  worked, 
to  use  the  professional  slang;  yet  the  few  instances  I  have  to 
detail  are  all  that  have  been  discovered,  although  no  one 
knows  how  many  frauds  have  escaped  detection. 

Mr.  John  Francis,  in  his  entertaining  work  entitled  "  The 
126 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

Annals,  Anecdotes,  and  Legends  of  Life  Insurance,"  with 
all  his  laborious  research  has  been  able  to  find  but  two 
such  instances  of  attempted  fraud.  The  first  occurred 
at  Berlin,  Germany,  in  1848,  where  a  surgeon  had  been 
bribed  to  certify  to  the  death  of  a  person  heavily  insured, 
and  a  coffin  filled  with  stones  and  rotten  straw  was  solemnly 
interred  with  all  the  religious  ceremony  and  friendly  attention 
appropriate  to  the  occasion.  Unhappily  for  its  instigator, 
the  plot  was  soon  discovered  and  all  the  parties  interested 
properly  punished.  The  same  trick  was  attempted  a  few 
years  since,  in  a  Western  State,  with  the  same  result. 

The  second  case  related  by  Mr.  Francis  shows  rascally 
genius,  and  was  so  well  planned  that  no  suspicion  was  excited 
and  success  was  achieved.  A  party  of  four  men  in  London 
hired  a  boat  one  evening  about  dusk,  just  below  Blackfriar's 
bridge,  and  proceeded  for  a  pleasure  excursion  up  the  Thames. 
While  rowing  quietly  along  and  not  far  from  shore,  the  boat 
was  suddenly  and  apparently  without  cause  overturned,  and 
its  four  occupants  were  struggling  amid  the  darkness  in  the 
water.  Their  cries  for  help  were  speedily  answered  by  the 
numerous  boats  in  the  vicinity,  and  three  of  the  party  were 
soon  in  safety,  but  the  fourth  could  nowhere  be  found.  Care- 
ful search  was  made  without  result,  and  the  survivors  were 
loud  in  their  lamentations  over  the  unhappy  fate  of  their  dear 
friend.  They  were  compelled  reluctantly  to  leave  the  spot 
where  he  had  been  lost,  but  not  before  offering  a  large  reward 
for  the  recovery  of  his  body.  Late  that  night  the  same  party 
in  a  small  boat  with  muffled  oars  proceeded  stealthily  down 
the  river,  and  placed  a  dead  body  procured  from  some  hos- 

127 


MYSTERIOUS  DISAPPEARANCES  AND 

pital  or  cemetery  at  a  point  on  the  river  bank,  where  the  tide 
would  be  likely  to  throw  a  corpse  drowned  at  the  spot  where 
their  accident  had  occurred.  The  next  morning  they  reap- 
peared upon  the  scene,  heard  with  astonishment  and  delight 
that  the  body  of  their  deceased  comrade  had  been  found, 
recognized  the  corpse  at  once,  and  paid  with  alacrity  the  re- 
ward which  they  had  promised.  The  Coroner's  inquest  was 
held  in  due  form,  the  accident  described,  the  three  survivors 
identified  the  body  as  that  of  their  deceased  friend,  and  a 
verdict  of  accidental  death  was  duly  rendered.  The  proceed- 
ings with  other  proper  proofs  were  presented  to  the  company 
which  had  a  large  insurance  on  the  life  of  the  suppositi- 
tious deceased,  and  as  everything  appeared  to  be  perfectly 
regular,  the  money  was  duly  paid  to  the  claimant.  Not  until 
the  parties  concerned  had  the  audacity  to  attempt  the  same 
operation  a  second  time  was  the  fraud  discovered.  The 
admirers  of  Mr.  Chas.  Reade  may  remember  that  he  has 
worked  this  incident  into  the  lives  of  one  of  his  characters  in 
a  recent  novel. 

An  ingenious  gentleman  in  Massachusetts,  who  had  em- 
barrassed his  affairs  by  a  long  continued  series  of  forgeries, 
and  had  become  somewhat  apprehensive  of  the  result  to 
himself,  recently  endeavored  to  solve  his  difficulties  by  a 
mysterious  disappearance  from  a  Fall  River  boat.  He  was 
known  to  have  left  New  York  on  it,  but  was  not  seen  the  next 
morning,  and  on  examination  his  outer  clothing  was  found 
in  his  stateroom,  but  no  trace  of  himself .  His  life  was  heavily 
insured,  he  was  known  to  be  financially  embarrassed,  and 
the  first  supposition  naturally  was  that  he  had  committed 

128 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

suicide.  Unfortunately  for  the  success  of  his  well-laid  plans 
the  victims  of  his  crimes  were  sufficiently  skeptical  of  his 
death  to  secure  a  large  detective  force  to  trace  him,  and  their 
efforts  resulted  in  his  arrest  at  San  Francisco  as  he  was  about 
to  embark  for  Australia.  His  plan  of  operation  had  been 
very  simple  —  he  merely  left  the  suit  of  clothes  he  had  worn 
in  his  stateroom,  taking  another  from  his  valise,  shaved  his 
beard  and  whiskers,  and  stepped  forth  so  altered  that  no 
casual  observer  the  next  morning  recognized  him  as  the  man 
they  had  seen  the  night  before. 

More  careful  construction  of  a  plot  and  greater  attention 
to  details  was  shown  by  two  men  named  Shepherd,  who  con- 
cocted a  fraud  upon  three  insurance  companies  some  two 
years  since.  About  the  middle  of  July,  1873,  one  George 
Shepherd  called  at  the  house  of  a  farmer  in  Maryland,  living 
near  the  Potomac  River  nearly  opposite  Alexandria,  and 
asked  and  obtained  permission  to  spend  the  night.  One  of 
the  family  was  a  boy  of  about  sixteen  years  of  age,  apparently 
a  simple,  well-meaning  creature,  not  overburdened  with 
brains,  who  seemed  to  Shepherd  a  fitting  tool  for  the  scheme 
he  had  in  mind.  In  the  course  of  the  evening's  conversation 
he  suggested  to  the  farmer,  who  spoke  of  his  desire  for  addi- 
tional help  in  harvesting,  that  he  had  a  brother  living  with 
him  in  Alexandria  who  would  be  glad  to  accept  a  short  en- 
gagement. The  proposal  was  accepted  and  James  Shepherd 
entered  into  the  farmer's  employ,  his  brother  visiting  him 
almost  daily,  and  thus  continuing  his  own  acquaintance 
with  the  family.  After  a  week  of  these  preliminaries,  James, 
who  had  by  this  time  become  quite  well  acquainted  with  the 

129 


MYSTERIOUS  DISAPPEARANCES  AND 

boy  already  mentioned,  proposed  to  him  one  evening  to  go 
out  on  the  river  for  a  fishing  excursion  with  his  brother  George, 
and  the  two  together  went  to  the  water,  where  they  found 
George  in  a  boat.  This  latter  had  some  peculiarities  of 
construction  which  are  entitled  to  especial  mention.  It  was 
an  ordinary  working-boat,  about  twelve  feet  in  length,  having 
two  seats  in  the  center,  but  none  in  the  bow  or  stern.  On 
the  latter  was  fastened  a  platform  which  projected  out  over 
the  water  some  ten  or  twelve  inches,  and  almost  as  much  on 
each  side,  and  a  rope  ran  along  the  outside  of  the  boat  from 
the  bow  to  the  stern,  and  dragged  some  additional  length  in 
the  water.  The  weather  was  warm,  but  George  wore  a 
rubber  coat  over  his  other  clothing.  In  this  boat  thus  pre- 
pared, the  party  started  about  dusk,  James  and  the  boy  each 
pulling  an  oar  and  George  sitting  in  the  stern.  They  stopped 
twice  and  anchored  to  fish,  and  having  consumed  the  time 
until  it  was  quite  dark,  the  night  being  cloudy,  the  Shepherds 
proposed  to  pull  up  the  anchor  to  go  ashore.  They  were 
then  on  the  flats  between  the  channel  and  the  shore,  the  moon 
was  obscured  by  thick  clouds,  and  the  only  light  visible  pro- 
ceeded from  a  lighthouse  on  the  Virginia  shore  opposite  to 
them.  On  the  return  trip  the  position  of  the  parties  was 
somewhat  altered :  George  sat  in  the  bow  of  the  boat,  the  boy 
in  the  centre,  pulling  both  oars,  so  that  his  back  was  towards 
him  and  his  attention  fully  occupied,  and  James  on  the  other 
seat.  Suddenly,  as  the  boat  was  proceeding  quietly  without 
any  jar  or  shock,  a  splash  was  heard,  James  cried  out  that  his 
brother  had  fallen  overboard,  and  the  boy,  turning  his  head 
saw  him  for  one  brief  instant  near  the  boat  on  the  surface  of 

130 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

the  water,  beneath  which  he  immediately  sank.  The  two 
rowed  about  for  some  time,  and  poked  with  their  oars  on  the 
bottom  of  the  river,  but  of  course  did  not  find  what  one  of  them, 
at  least,  knew  very  well  was  not  there.  After  fifteen  minutes 
spent  in  this  useless  employment,  they  proceeded  to  the  shore, 
when  the  boy  was  at  once  sent  to  a  distance  to  inform  a  neigh- 
bor of  the  accident,  thus  giving  George  an  opportunity  of 
coming  out  from  under  the  stern  of  the  boat,  where  he  had 
supported  himself  by  the  rope,  and  betaking  himself  to  a  place 
of  security.  The  neighbors  were  told  the  story,  and  urged 
to  search  for  the  body,  but  the  rogues  were  inferior  to  their 
English  prototypes  in  neglecting  to  procure  a  corpse  to  per- 
sonate the  absent  one,  and  no  body  was  ever  found.  James 
remained  in  the  farmer's  employ  for  a  few  days  longer,  until 
he  had  recovered  from  his  grief  sufficiently  to  enable  him  to 
take  the  boy  before  a  notary  public  in  Alexandria,  and  have 
him  swear  to  an  affidavit  detailing  the  circumstances  of  the 
death  of  George  as  he  understood  them,  and  then  he  too 
disappeared  from  view  for  a  while. 

About  this  time  the  police  of  Alexandria  became  very  much 
exercised  about  the  mysterious  movements  of  some  men  who 
appeared  to  be  living  in  a  swamp  near  the  town,  and  as  it 
was  feared  that  they  were  plotting  burglaries  at  least,  it  was 
decided  to  effect  their  capture.  A  sudden  and  unsuspected 
movement  resulted  in  the  discovery  of  the  Shepherds'  boat, 
containing  two  men,  one  of  whom  escaped  at  the  first  alarm, 
but  the  other,  who  proved  to  be  James  Shepherd,  was  taken 
prisoner.  He  was  found  to  be  heavily  armed,  and  to  have 
on  his  person  three  policies  of  insurance  which  had  been 

131 


MYSTERIOUS  DISAPPEARANCES  AND 

issued  by  as  many  companies  upon  the  life  of  his  brother 
George,  and  the  affidavits  of  the  latter's  death  made  by  the 
boy  and  himself.  In  his  first  fright  and  alarm  he  confessed 
the  whole  fraud,  but  subsequently  decided  to  contradict  his 
statements,  and  to  plead  not  guilty  to  the  indictment  which 
was  found  against  him  for  perjury  in  swearing  to  his  brother's 
death;  the  event  proved  his  wisdom,  for  the  jury  before  whom 
he  was  tried  were  unable  to  make  up  what  they  were  pleased 
to  call  their  minds,  although  several  witnesses  deposed  to 
having  seen  George  Shepherd  since  the  time  of  his  alleged 
death,  and  their  disagreement  was  a  virtual  discharge  for  the 
prisoner.  He  was  so  emboldened  by  this  success  that  he  had 
an  administrator  of  his  brother's  estate  appointed  in  Rich- 
mond, and  commenced  a  suit  on  the  policies  in  his  name. 
It  is  needless  to  add  that  it  is  not  one  which  gives  the  com- 
panies interested  much  anxiety,  familiar  as  they  are  with  the 
extraordinary  vagaries  of  petit  juries. 

A  very  striking  instance  of  the  tendency  of  the  average 
jury  to  find  a  verdict  against  a  life  insurance  company  in  all 
cases,  without  the  slightest  attention  to  the  law  or  the  facts 
involved,  is  afforded  by  the  Goss-Udderzook  conspiracy, 
which  reached  its  final  determination  year  before  last,  in  the 
execution  of  one  of  those  parties  for  the  murder  of  the  other. 
The  whole  case  is  so  startlingly  dramatic  and  so  thrilling  in 
its  incidents,  that  I  trust  I  may  be  pardoned  for  dwelling  upon 
it  at  some  length. 

In  the  winter  of  1871-2,  Winfield  Scott  Goss  was  a  young 
mechanic  in  the  city  of  Baltimore,  a  man  of  about  thirty-six 
years  of  age,  of  considerable  inventive  ingenuity,  devoting 

132 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

much  of  his  time  to  new  mechanical  devices,  somewhat 
addicted  to  intemperance,  of  superb  physique,  and, 
unfortunately  for  himself  and  his  fellow-conspirators,  of 
conspicuous  and  striking  presence.  A  good-natured,  good 
humored  fellow,  not  possessing  a  high  order  of  intellect, 
rather  idle  and  shiftless,  and  completely  under  the  control  of 
his  brother-in-law,  Wm.  E.  Udderzook,  who  is  the  villain 
of  the  story.  Goss  had  for  two  or  three  years  carried  a  policy 
of  $5,000  on  his  life,  when  the  plan  was  formed  to  perpetrate 
a  deliberate  fraud  upon  the  insurance  companies.  As  the 
existing  policy  was  hardly  a  sufficient  prize,  the  first  step  was 
to  increase  the  amount,  and  in  December,  1871,  Goss  applied 
to  other  companies  for  two  more  policies  of  $10,000  each. 
Being  physically  an  excellent  risk,  he  was  at  once  accepted, 
and  having  raised  the  funds  to  pay  the  first  quarterly  premium 
on  each,  he  was  in  possession  of  policies  aggregating  $25,000. 
His  next  step  was  to  announce  to  his  friends  that  he  proposed 
entering  upon  a  series  of  experiments  in  the  hope  of  making 
an  artificial  india-rubber,  and  with  this  ostensible  object  he 
hired  a  small  shanty  some  distance  from  Baltimore,  on  the 
York  Road,  in  a  thinly  settled  neighborhood,  where  he  es- 
tablished his  laboratory.  On  the  second  of  February,  1872, 
Goss  and  Udderzook  went  together  in  the  afternoon  to  this 
building  as  usual,  and  remained  there  some  time.  About 
eight  o'clock  in  the  evening,  Udderzook  appeared  at  the  door 
of  a  farmhouse  situated  at  a  distance  of  half  a  mile,  and 
begged  for  a  lamp,  stating  that  the  one  which  they  had  been 
using  burned  very  badly,  and  afforded  scarcely  any  light. 
This  request  having  been  complied  with,  he  started  to  return, 

133 


MYSTERIOUS  DISAPPEARANCES  AND 

carrying  the  lamp  and  accompanied  by  a  son  of  the  family, 
whom  he  had  invited  to  go  with  him.  They  had  proceeded 
but  a  short  distance  when  their  attention  was  attracted  by  a 
gleam  of  light,  and  on  the  suggestion  of  Udderzook  that  the 
laboratory  must  be  on  fire,  they  started  on  a  run.  Arriving 
at  the  building,  they  found  it  all  in  flames,  a  crowd  of  people 
assembled,  and  some  engines  from  the  city  on  hand  and  at 
work.  It  was  soon  evident  that  the  building  must  be  entirely 
destroyed,  and  then  for  the  first  time  Udderzook  made  in- 
quiries for  his  brother-in-law,  and  expressed  the  fear  that  he 
had  perished  in  the  conflagration.  The  thought  that  a 
fellow-creature  might  be  endangered  increased  the  exertions 
of  the  firemen,  and  in  short  time  the  flames  were  beaten  down 
sufficiently  to  allow  the  form  of  a  man  to  be  indistinctly  seen 
amid  the  ruins.  After  several  unsuccessful  efforts,  a  hook 
was  inserted  in  it,  and  it  was  dragged  out  smoking  and  burn- 
ing. The  flesh  of  the  head  was  entirely  consumed,  as  was 
the  major  part  of  the  limbs;  in  fact,  little  but  the  skull,  trunk, 
and  a  portion  of  one  of  the  thighs  was  left.  At  the  coroner's 
inquest  the  next  day,  however,  the  remains  were  identified 
by  Mrs.  Goss,  a  brother,  Alexander  C.  Goss,  and  by  Udder- 
zook, who  also  detailed  the  circumstances  of  his  leaving 
his  brother-in-law,  and  supposed  that  the  lamp  which  they 
had  used  had  suddenly  exploded,  setting  fire  to  the  build- 
ing, and  burning  or  otherwise  crippling  Goss,  so  that  he 
was  unable  to  escape.  The  explanation  was  probable  and 
satisfactory,  the  verdict  was  duly  rendered,  and  the  weep- 
ing widow  and  mourning  friends  followed  to  the  grave, 
with  all  becoming  religious  ceremonial,  what  the  coroner's 

134 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

jury  had  certified  to  be  the  mortal  remains  of  Winfield  Scott 
Goss. 

The  proofs  of  death  were  duly  presented,  everything  ap- 
peared to  be  entirely  regular,  and  the  conspirators  believed 
themselves  to  be  certain  of  success.  But  there  is  always 
danger  of  over-doing  a  job  of  this  character,  and  that  was  the 
error  committed  in  the  present  instance.  The  two  com- 
panies, who  had  but  just  issued  their  policies  for  $10,000 
each,  were  naturally  annoyed  at  so  large  a  loss  occurring  so 
speedily,  and  set  to  work  to  scrutinize  all  the  facts  in  the  case 
with  the  greatest  care.  The  first  discovery  of  importance 
was  that  Goss  was  utterly  unable  to  carry  so  large  an  amount 
of  insurance.  His  income  was  limited,  and  insufficient  to 
cover  his  expenses;  he  was  in  debt  to  quite  an  extent,  and  had 
even  been  obliged  to  borrow  money  to  pay  the  first  premiums 
on  his  new  policies.  It  was  therefore  clear  that  he  could  not 
have  intended  to  carry  them  long,  and  had  obtained  them 
only  for  some  immediate  object.  This  was  sufficient  to 
excite  suspicion,  and  the  unusual  nature  of  the  death  added 
to  it.  The  character  of  Udderzook  was  not  altogether  be- 
yond question,  and  his  conduct  at  the  farmhouse  when  he 
went  to  obtain  the  light  excited  the  comment  of  the  people 
there.  It  appears  that  he  sat  and  conversed  with  them  for 
some  time  before  stating  his  object  in  coming,  and,  after  he 
had  mentioned  it  and  obtained  the  light,  he  still  lingered  so 
long  that  they  felt  obliged  to  remind  him  of  the  comrade 
whom  he  had  left  in  the  dark,  and  to  advise  his  speedy  return. 
This  apparently  inexplicable  delay  seemed  intended  to  allow 
the  fire  ample  time  to  get  well  under  way  before  he  reappeared. 

135 


MYSTERIOUS  DISAPPEARANCES  AND 

Again,  his  apparent  forgetf  ulness  of  his  brother-in-law  on  his 
arrival  at  the  scene  of  the  disaster,  and  his  neglect  to  make 
any  inquiry  for  him  until  it  was  too  late  to  make  any  effort  to 
extricate  him  from  his  supposed  position,  tended  to  show 
that  he  did  not  wish  to  have  the  body  drawn  from  the  fire 
until  it  had  been  so  far  destroyed  as  to  render  any  attempt  at 
identification  hopeless.  In  the  endeavor  to  strengthen  his 
case,  he  committed  a  blunder  which  injured  it  very  seriously. 
A  few  days  after  the  catastrophe  he  produced  the  watch  of 
Goss  which  he  said  he  had  discovered  among  the  ruins,  al- 
though these  had  already  been  searched  by  hundreds  of 
curiosity  seekers,  and  nothing  of  importance  found.  This 
watch  he  swore  that  Goss  had  carried  on  the  night  of  the 
fire,  but  while  the  heat  had  almost  entirely  consumed  the 
body,  the  watch,  which  was  said  to  have  been  on  it,  was  not 
melted  nor  even  tarnished  or  injured  in  any  way.  Careful 
investigation  also  showed  that  on  the  afternoon  of  the  fire  a 
man  supposed  and  believed  to  be  A.  C.  Goss,  a  brother  of 
the  insured,  had  hired  a  horse  and  a  wagon  from  a  livery 
stable  in  the  city,  and  had  not  returned  with  it  until  late  in  the 
evening.  The  theory  adopted  by  all  the  companies,  in  view 
of  the  facts,  was  that  a  body  had  been  procured  from  some 
poor-house  or  cemetery,  and  conveyed  to  the  shanty  in  the 
afternoon;  that  Goss  and  Udderzook  had  together  saturated 
the  corpse  and  building  with  coal-oil  to  ensure  their  destruc- 
tion; that  after  the  latter  had  gone  for  the  light,  the  former 
had  set  fire  to  the  house,  and  then  jumping  into  the  buggy 
held  in  readiness  by  his  brother,  driven  to  a  small  station 
near  by,  at  which  the  evening  train  from  Baltimore  stopped 

136 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

and  proceeded  in  that  to  Philadelphia,  while  his  brother 
returned  with  the  buggy  to  the  city,  and  Udderzook  wept 
over  the  charred  remains  drawn  from  the  fire.  The  com- 
panies therefore  declined  to  pay  the  policies,  and  the  widow 
promptly  commenced  suit  against  them. 

So  far  the  defense  had  only  conjecture  and  suspicion  to 
rely  upon,  and  as  it  was  certain  that  no  favors  could  be  ex- 
pected from  a  jury,  it  was  most  important  that  positive  evi- 
dence should  be  discovered.  Photographs  of  Goss  were 
freely  distributed  throughout  this  country  and  Canada,  and 
every  effort  made  to  reach  his  hiding-place,  but  without 
success.  He  seemed  to  have  disappeared  from  the  face  of 
the  earth  as  completely  as  if  he  had  really  perished  in  the 
flames. 

In  the  spring  of  1873,  as  the  time  of  trial  drew  near  and 
it  became  evident  that  Goss  could  not  be  found,  it  occurred 
to  the  law  officer  of  one  of  the  companies  that,  in  the  absence 
of  any  distinctive  marks  on  the  buried  remains,  it  might  be 
worth  while  to  examine  the  teeth.  It  had  been  noted  that 
the  insured  had  a  remarkably  perfect  set,  and  several  of  the 
persons  examined,  in  describing  his  personal  appearance, 
had  especially  referred  to  their  whiteness  and  regularity  as 
being  extremely  noticeable.  Personal  interviews  with  over 
fifty  dentists  in  Baltimore,  Washington,  and  Philadelphia 
failed  to  show  that  any  work  had  been  done  for  him  by  any 
of  them,  and  his  wife  and  relatives  were  all  certain  that  he 
had  never  been  to  a  dentist  and  never  had  any  trouble  with 
his  teeth  requiring  attention.  It  remained  to  ascertain 
whether  the  corpse  had  been  equally  fortunate  in  an  exemp- 

137 


MYSTERIOUS  DISAPPEARANCES  AND 

tion  from  the  ill  which  afflicts  so  much  of  humanity,  and 
proper  authority  was  obtained  for  its  exhumation  in  the 
presence  of  competent  witnesses.  A  moment's  examination 
sufficed  to  show  that  the  dental  system  of  the  deceased  was 
an  utter  wreck,  the  condition  of  his  mouth  being  such  that 
his  articulation  must  have  been  affected,  and  that  no  one 
could  have  conversed  with  him  in  his  lifetime  without  ob- 
serving the  defect.  Here,  then,  was  proof  positive  that  the 
remains  found  in  the  burned  building  were  not  those  of  Goss, 
and  with  this  fact,  added  to  the  conjectures  already  indicated 
in  their  possession,  the  companies  went  confidently  to  trial 
in  Baltimore. 

All  the  circumstances  of  the  case  were  brought  out  fully 
on  that  occasion,  much  more  powerfully  and  plainly  than  I 
have  stated  them,  and  impressed  upon  the  jury  with  all  the 
eloquence  and  skill  which  learned  counsel  could  bring  to 
bear;  the  Judge  and  all  the  hearers,  except  those  it  was  im- 
portant to  convince,  were  thoroughly  satisfied  that  a  great 
fraud  had  been  committed;  but  the  jury  promptly  brought 
in  a  verdict  for  the  plaintiff  on  general  principles.  Of  course, 
a  motion  was  at  once  made  to  set  it  aside,  as  being  against 
the  weight  of  evidence;  and,  pending  the  decision  of  that 
question,  we  may  allow  the  curtain  to  fall  on  the  first  act  of 
our  drama. 

It  rises  again  to  show  us,  some  six  weeks  after  the  trial,  a 
distant  spot  in  Chester  County,  Pennsylvania.  A  farmer 
residing  near  a  little  clump  of  trees,  known  as  Baer's  Woods, 
was  struck  by  noticing  a  large  number  of  vultures  hovering 
over  them.  Seeing  from  their  manner  that  something  unusual 

138 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

attracted  them,  he  had  the  curiosity  to  visit  the  spot  where 
they  were  congregating,  and  discovered  to  his  horror  that 
they  were  feasting  upon  a  portion  of  a  human  body,  the 
abdomen  of  which,  thinly  covered  by  a  layer  of  earth  and  a 
few  leaves,  was  protruding  from  the  ground.  The  local 
coroner  was  at  once  summoned,  with  other  neighbors,  and  a 
careful  examination  of  the  vicinity  made.  The  fragment 
already  uncovered  by  the  vultures  proved  to  be  the  trunk  of 
a  large,  full-chested,  well-developed  man;  at  a  little  distance, 
where  a  recent  disturbance  of  the  earth  indicated  that  other 
discoveries  might  be  made,  were  found  buried  the  limbs; 
and  a  third  hole  contained  the  head  and  a  bloody  shirt.  The 
remains  were  carefully  carried  to  the  neighboring  village  of 
Jennerville,  and  conjecture  at  once  set  to  work  to  identify 
the  victim  and  his  murderer. 

The  latter  was  speedily  indicated.  Some  days  before, 
Wm.  E.  Udderzook,  who  had  spent  his  boyhood  there,  and 
whose  mother  still  resided  in  the  neighborhood,  had  arrived 
there  with  a  friend  whom  he  represented  as  the  traveling 
agent  of  a  Western  firm,  and  then  suffering  from  delirium 
tremens.  The  invalid  kept  himself  carefully  concealed  from 
observation,  while  Udderzook  made  various  visits  in  the 
neighborhood,  and,  among  others,  to  another  brother-in-law, 
one  Samuel  Rhodes,  a  farmer  residing  near  Baer's  Woods, 
to  whom  he  broached  a  scheme  of  securing  a  large  sum  of 
money  by  making  away  with  a  man  whom  he  represented  as 
being  already  dead  to  the  world,  and  about  whom  no  inquiries 
would  ever  be  made.  Rhodes  having  declined  this  easy 
method  of  acquiring  wealth,  Udderzook  decided  to  execute 

139 


MYSTERIOUS  DISAPPEARANCES  AND 

his  purpose  alone.  The  next  day  between  1  and  2  o'clock 
in  the  afternoon,  being  July  1,  1873,  he  hired  a  horse  and 
buggy  from  a  neighboring  livery-stable,  and  with  his  com- 
panion drove  away  in  the  direction  of  Baer's  Woods.  Shortly 
before  midnight  he  returned  alone,  and  stated  that  his  com- 
panion had  taken  the  cars  at  a  station  near;  and  the  next 
morning,  after  a  visit  to  his  mother,  he  himself  returned  to 
Baltimore.  As  he  was  well  known  in  the  neighborhood,  his 
account  of  the  stranger  and  his  disappearance  was  entirely 
satisfactory;  but  when  the  mutilated  remains  were  discovered 
and  recognized  as  those  of  his  unknown  companion,  suspicion 
was  at  once  excited,  and  he  was  arrested  on  the  charge  of 
murder.  An  examination  of  the  buggy,  the  morning  after 
its  return  to  the  stable,  had  shown  the  dash-board  broken, 
and  that  the  bottom  of  it  had  been  washed  out;  but  a  more 
careful  scrutiny  of  it  was  made,  in  the  light  of  later  events, 
and  on  looking  at  the  under  side  it  was  found  that  a  crack 
had  allowed  a  few  drops  of  blood  to  soak  through,  which  still 
remained  —  most  damning  evidences  of  guilt.  A  seal  ring 
was  found  in  the  bottom  of  it  by  a  hostler,  the  morning  after 
the  fatal  ride;  and  this  ring  proved  to  be  a  most  valuable  clue. 
The  moment  the  arrest  of  Udderzook  and  the  description 
of  his  unknown  victim  were  published,  the  insurance  com- 
panies surmised  that  the  mystery  of  Goss's  disappearance 
might  be  near  its  solution  at  last,  and  several  agents  who  had 
known  him  personally  hastened  to  the  scene.  A  glance  at 
the  remains,  altered  as  they  were,  was  sufficient,  and  ac- 
quaintances and  photographs  brought  from  Baltimore 
established  beyond  question  the  identity  of  the  murdered 

140 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

companion  of  Udderzook  with  the  experimenter  on  the  York 
Road.  The  members  of  the  family  were  too  deeply  committed 
to  the  other  side  to  dare  to  acknowledge  the  truth,  but  no 
impartial  witness  hesitated  for  a  moment. 

To  trace  back  the  movements  of  the  dead  man,  from  his 
murder  in  the  wood  to  his  flight  from  the  fire,  proved  to  be 
a  much  easier  task  then  had  been  the  endeavor  to  trace  them 
forward  from  his  sudden  disappearance.  On  that  eventful 
night,  he  actually  went,  as  was  conjectured,  to  Philadelphia, 
where  he  registered  himself  as  A.  C.  Wilson,  a  name  which 
he  retained  throughout  his  wanderings.  The  next  summer 
he  spent  at  a  farmer's  in  Pennsylvania,  but  his  increasing 
love  for  liquor,  fostered  by  his  life  of  enforced  idleness,  made 
him  an  undesirable  inmate  in  a  quiet  country  home,  and  he 
was  obliged  to  leave.  He  then  went  to  the  city  of  Newark, 
in  New  Jersey,  where  he  remained  in  a  secluded  boarding- 
house,  while  the  detectives  were  vainly  searching  the  country 
for  him,  until  after  the  trial  in  Baltimore.  There  were  three 
incidents  which  contributed  mainly  to  his  identification,  and 
which  together  were  conclusive.  Being,  as  already  stated,  a 
large  man  of  striking  presence,  he  had  a  peculiar  manner  of 
throwing  his  chest  forward,  which  was  very  noticeable,  and 
which  he  was  unable  to  change,  even  when  disguise  of  his 
identity  became  so  necessary.  Secondly,  appears  a  screw- 
driver made  with  a  ratchet,  so  that  it  could  be  used  without 
removing  the  hand,  a  wooden  model  of  which  Goss  had 
invented  and  made,  and  which  same  model  Wilson  possessed 
and  was  equally  fond  of  exhibiting  and  explaining.  Thirdly, 
was  the  seal  ring  already  mentioned,  which  had  belonged  to 

141 


MYSTERIOUS  DISAPPEARANCES  AND 

Goss,  was  constantly  worn  by  Wilson,  and  was  found  in  the 
bottom  of  the  buggy  the  morning  after  the  murder  of 
the  stranger  by  Udderzook.  After  the  identification  of  the 
murdered  man  with  Goss,  the  motives  for  the  murder  were 
easily  conjectured.  The  importance  of  avoiding  detection 
and  recognition  was  so  great  that  he  did  not  dare  to  engage 
in  any  employment  which  would  necessarily  bring  him  in 
contact  with  other  people,  and  his  own  taste  for  an  idle  life 
probably  made  him  perfectly  willing  to  be  supported  by 
others.  But  this  necessity  for  supporting  him  must  have 
been  a  very  heavy  drain  upon  the  conspirators  in  Baltimore, 
who  were  none  of  them  persons  of  means,  and  the  risk  which 
they  ran,  of  losing  all  their  venture,  was  greatly  increased  by 
Goss's  growing  habit  of  intemperance,  for  a  dangerous  secret 
which  depends  upon  the  discretion  of  a  drunken  man  is  a 
powder  magazine  which  may  explode  at  any  moment.  How 
indiscreet  he  was,  is  shown  by  a  conversation  which  he  held 
with  a  fellow-boarder  in  Newark,  a  few  days  before  his  de- 
parture, in  which  he  proposed,  as  a  promising  speculation, 
that  he  (Goss)  should  insure  his  life  for  $10,000,  the  other 
paying  the  premium;  that  they  should  procure  a  small  frame 
house,  put  a  corpse  in  it,  burn  up  the  house  and  corpse  to- 
gether, prove  the  loss,  and  divide  the  money  which  the  com- 
pany would  pay,  "and  even  if  the  company  should  refuse  to 
pay,  added  he,  "a  jury  would  be  sure  to  make  them,  for  I 
have  tried  it."  How  many  beside  this  poor  victim  of  the 
avarice  of  himself  and  others  have  been  led  into  crime  by 
the  fatal  tendency  of  juries  to  mulct  corporations  in  favor  of 
individual  plaintiffs,  without  regard  to  law  or  justice,  will 

142 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

probably  never  be  known,  but  this  one  example  shows  how 
great  a  temptation  that  tendency  affords. 

It  is  probable  that  Goss  expected  some  immediate  result 
when  the  verdict  was  rendered  in  favor  of  the  claim  against 
the  companies,  and  was  much  disappointed  when  he  dis- 
covered that  the  law  would  interpose  still  further  delays, 
before  he  could  clutch  the  coveted  money.  He  had  become 
very  tired  of  his  quiet,  secluded  life,  shut  off  from  his  wife, 
his  family,  and  all  his  friends  and  associations,  and  it  is  not 
unreasonable  to  suppose  that  he  may  have  threatened  to 
abandon  the  whole  thing  and  return  openly  to  Baltimore. 
For  after  all  he  had  committed  no  crime.  He  had  absented 
himself  for  his  own  purposes,  and  if  his  relatives  had  taken 
advantage  of  his  absence  to  pretend  that  he  was  dead,  and  to 
contrive  a  swindle  upon  the  insurance  companies,  that  was 
their  affair,  not  his,  and  he  could  easily  make  it  appear  that 
he  had  returned  to  confound  their  villainy  as  soon  as  he  had 
learned  of  it.  Their  testimony  in  the  trial  had  concluded 
them,  and  he  was  now  in  a  position  to  command  and  threaten, 
when  before  he  could  only  beg.  They  appreciated  the 
change  of  circumstances  quite  as  well  as  he,  and  deter- 
mined to  send  him  abroad,  where  he  would  be  less  likely  to 
be  recognized,  and  where  his  indiscreet  utterances  would  not 
be  so  dangerous.  With  this  object  in  view,  they  raised  about 
fifteen  hundred  dollars,  with  which  amount  Udderzook  went 
to  Newark  toward  the  end  of  June.  His  influence  over  his 
weaker  brother-in-law  was  unbounded;  so  marked,  indeed, 
that  even  the  careless  observers  in  the  little  inn  at  Jennerville 
observed  and  commented  on  it,  and  he  deliberately  deter- 

143 


MYSTERIOUS  DISAPPEARANCES  AND 

mined  to  use  that  influence  to  lead  him  to  his  destruction. 
He  looked  over  all  the  case  calmly;  he  saw,  as  he  told  Rhodes, 
that  the  man  was  already  dead  to  the  world,  and  would  be 
missed  by  none  but  those  whose  own  safety  would  not  allow 
them  to  call  attention  to  his  disappearance,  and  with  his 
actual  death  all  danger  of  discovery  would  be  forever  re- 
moved, and  the  money  which  they  had  raised  with  so  much 
difficulty  saved.  Instead,  therefore,  of  shipping  Goss  to 
Europe,  he  took  him  with  him  to  Jennerville,  and  it  is  in- 
dicative of  the  calculating  shrewdness  of  the  man,  that  he 
went  to  his  own  old  home,  where,  as  he  knew,  his  arrival 
with  a  stranger,  and  the  subsequent  disappearance  of  the 
latter,  would  excite  no  comment  which  would  not  be  fully 
satisfied  by  any  explanation  he  might  choose  to  give.  Using, 
therefore,  for  the  basest  purpose,  the  child-like  confidence 
which  Goss  reposed  in  him,  he  took  him  to  the  home  of  his 
childhood,  and  having  surveyed  the  ground  and  perfected 
his  plans  invited  him  out  for  his  final  drive. 

From  all  the  circumstances  it  is  probable  that  Udderzook 
threw  his  arm  carelessly  around  Goss  as  they  were  riding 
slowly  through  Baer's  Woods,  and  then  suddenly  tightening 
the  grasp,  so  as  to  hold  his  victim's  arms,  plunged  a  knife  into 
his  throat.  Goss  thrust  out  his  feet  in  the  death  agony  with 
such  force  as  to  break  the  dash-board,  but  another  blow 
followed  instantly,  and  he  had  no  time  to  resist  before  he  lay 
helpless  in  his  murderer's  arms.  The  latter  must  then  have 
dragged  the  body  a  short  distance  into  the  woods,  washed 
out  the  buggy,  driven  it  back  to  its  owner,  and  then  returned 
to  his  horrible  task  of  dismembering  and  interring  the 

144 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

evidence  of  his  crime.  A  bright  light  was  seen  in  the  woods 
that  night,  doubtless  caused  by  the  fire  which  TJdderzook 
built  to  burn  the  clothing  of  the  murdered  man,  as  some 
fragments  of  charred  cloth  and  burned  buttons  were  after- 
wards found  there.  On  his  visit  to  Rhodes  the  day  before, 
when  he  had  endeavored  to  persuade  the  latter  to  assist  him 
in  the  project  which  he  had  in  mind,  he  was  observed  to 
notice  a  spade  standing  neglected  against  a  barn,  which 
spade  was  missing  the  morning  after  the  murder;  he  doubt- 
less obtained  it  that  night,  intending  to  use  it  to  bury  the 
body,  but  failed  to  observe  that  the  handle  was  broken  half 
through,  so  that  it  must  have  flown  in  two  at  the  first  stroke 
he  made  with  it.  This  defeated  his  purpose  of  digging  a 
deep  hole  for  the  burial,  but  it  was  too  late  to  make  other 
arrangements  then.  The  night  was  already  far  gone,  the 
early  summer  sun  would  soon  be  up,  and  he  must  complete 
his  terrible  task  before  daybreak  in  the  best  fashion  he  might. 
He  was  compelled  by  the  want  of  proper  tools  to  hack  the 
body  into  fragments  and  bury  them  separately  in  such  shallow 
receptacles  as  he  could  scrape  with  the  blade  of  the  spade. 
The  sun  must  have  been  up  before  he  had  finished  his  work, 
and  he  must  have  felt  himself  that  it  was  unsatisfactorily 
done.  But  it  could  not  be  done  again,  and  he  therefore 
retreated  to  his  mother's  house,  where  he  had  some  of  his 
clothing  washed,  and  thence  to  Baltimore  to  await  the  result. 
The  whole  affair  was  ably  planned,  and  would  have  been, 
from  his  point  of  view,  a  complete  success,  had  it  not  been 
for  his  mistake  in  stealing  a  broken  spade  instead  of  a  whole 
one.  We  doubt  nowadays  whether  we  should  rightly  call 

145 


MYSTERIOUS  DISAPPEARANCES  AND 

such  a  mistake  an  accident  or  a  providential  interposition, 
but  in  all  human  probability,  had  Udderzook  been  able  to 
bury  his  victim  so  deep  that  the  vultures  could  not  reach  him, 
the  murder  would  never  have  been  known,  and  the  companies 
compelled  to  pay  a  fraudulent  claim.  But  the  shallow  grave 
attracted  the  carrion  birds,  and  their  presence  over  it  brought 
Udderzook  to  the  scaffold,  and  saved  the  insurance  companies 
from  an  infamous  fraud. 

I  have  mentioned  only  a  few  frauds  which  have  been 
detected.  How  many  have  escaped  detection  is  known  only 
to  Omniscience.  But  when  we  observe  what  comparatively 
trivial  accidents  have  led  to  discovery,  it  is  only  reasonable 
to  infer  that  there  may  have  been  many  others  in  which  no 
such  accident  has  occurred.  We  can  only  be  certain  that  the 
thing  which  has  been  will  be  again,  and  that  only  the  most 
watchful  care  and  unceasing  vigilance  will  enable  the  officers 
of  insurance  companies  to  protect  the  interests  of  the  honest 
and  deserving  policy-holders  from  the  rascality  of  designing 
knaves. 

PART  II 

SOME  years  ago,  or,  to  be  accurate,  in  March,  1876, 1  had 
the  honor  to  read  a  paper  on  this  topic  before  the  Medico- 
Legal  Society.  At  that  time  I  considered  the  subject  of 
frauds  upon  life  insurance  companies  by  means  of  pretended 
deaths  and  detailed  several  cases  of  that  character.  I  pro- 
pose now,  with  your  permission,  to  relate  some  instances  of 
mysterious  disappearances,  and  to  examine  the  rules  of  law 
governing  such  occurrences. 

146 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

The  number  of  disappearances  which  can  strictly  be  called 
mysterious  is  small.  In  most  of  the  adjudicated  cases,  as 
will  be  observed,  the  missing  person  was  last  seen  or  known 
of  in  circumstances  which  would  afford  a  plausible  explana- 
tion of  his  fate,  but  it  sometimes  happens  that  a  man  vanishes 
from  the  face  of  the  earth,  or  at  least  from  all  his  known 
associations  and  surroundings,  without  affording  solid  ground 
for  any  conjecture,  or  placing  any  limitation  upon  the  imagin- 
ation. Two  cases  have  recently  occurred  in  this  city  which 
give  especial  interest  to  this  subject  at  this  time.  In  one, 
the  missing  gentleman  left  the  house  of  a  relative  in  the  upper 
part  of  the  city,  about  half -past  ten  o'clock  at  night,  to  go  to 
his  own  home,  a  few  blocks  distant.  His  failure  to  arrive 
there  excited  inquiry  and  alarm,  and  within  an  hour  of  the 
time  when  last  seen,  the  police  were  put  upon  the  search. 
In  the  other,  a  gentleman  left  his  office  with  the  expressed 
intention  of  taking  the  afternoon  train  to  Boston  on  a  short 
business  trip,  and  was  met  by  a  friend  on  his  way  to  the 
Elevated  Road.  Both  of  these  gentlemen  were  married  men 
of  mature  years,  happy  in  their  domestic  relations,  strongly 
attached  to  their  wives  and  children,  prosperous  in  their 
worldly  circumstances,  free  from  any  special  cause  for  worry 
and  anxiety,  and  never  suspected  of  any  taint  of  insanity. 
Each  had  but  little  money  in  his  possession  at  the  time  of  his 
disappearance,  and  each  left  untouched  ample  funds  entirely 
under  his  own  control.  In  both  cases  friends  and  family 
are  unable  to  state  or  conceive  any  cause  for  voluntary 
absence,  and  every  device  to  trace  them  which  ardent  affec- 
tion aided  by  ample  means  and  professional  advice  can 

147 


MYSTERIOUS  DISAPPEARANCES  AND 

suggest  has  been  employed,  and  employed  in  vain.  The  police 
departments  of  various  cities  aided  by  private  detectives,  and 
the  utmost  possible  publicity,  have  been  engaged  in  the  search, 
every  trace  or  clue  which  could  be  discovered  has  been  fol- 
lowed up,  utterly  without  result.  Their  disappearance  is 
to-day  as  complete  and  apparently  impenetrable  a  mystery 
as  when  they  first  vanished  from  the  sight  of  their  friends. 

Permit  me  to  relate  two  anecdotes  illustrating  different 
phases  of  such  disappearances. 

Dr.  King,  of  London,  in  his  book  of  "Anecdotes  of  His 
Own  Time,"  published  in  1819,  tells  the  following  story, 
which  I  cite  in  his  own  language : 

"About  the  year  1706,  I  knew  one  Mr.  Howe,  a  sensible 
well  natured  man,  possessed  of  an  estate  of  £700  or  £800  per 
annum.  He  married  a  young  lady  of  good  family  in  the  west 
of  England,  her  maiden  name  was  Mallet;  she  was  agreeable 
in  her  person  and  manners  and  proved  a  very  good  wife. 
Seven  or  eight  years  after  they  had  been  married,  he  rose  one 
morning  early,  and  told  his  wife  he  was  obliged  to  go  to  the 
Tower  to  transact  some  particular  business ;  the  same  day,  at 
noon,  his  wife  received  a  note  from  him,  in  which  he  informed 
her  he  was  under  a  necessity  of  going  to  Holland,  and  should 
probably  be  about  three  weeks  or  a  month.  He  was  absent 
from  her  seventeen  years,  during  which  time  she  neither 
heard  from  him  nor  of  him.  The  evening  before  he  returned, 
whilst  she  was  at  supper  and  with  some  of  her  friends  and 
relations,  particularly  one  Dr.  Rose,  a  physician  who  had 
married  her  sister,  a  billet  without  any  name  subscribed  was 
delivered  to  her  in  which  the  writer  requested  the  favor  of 

148 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

her  to  give  him  a  meeting  the  next  evening  in  the  Birdcage 
Walk,  in  St.  James  Park;  when  she  had  read  her  billet  she 
tossed  it  to  Dr.  Rose,  and,  laughing,  'You  see,  brother,'  said 
she,  'old  as  I  am,  I  have  got  a  gallant';  Rose,  who  perused 
the  note  with  more  attention,  declared  it  to  be  Mr.  Howe's 
handwriting;  this  surprised  all  the  company,  and  so  much 
affected  Mrs.  Howe  that  she  fainted  away;  however,  she  soon 
recovered,  when  it  was  agreed  that  Dr.  Rose  and  his  wife, 
with  the  other  gentlemen  and  ladies  who  were  there  at  supper, 
should  attend  Mrs.  Howe  the  next  evening  to  the  Birdcage 
Walk.  They  had  not  been  there  more  than  five  or  six  min- 
utes when  Mr.  Howe  came  to  them,  and  after  saluting  his 
friends,  and  embracing  his  wife,  walked  home  with  her,  and 
they  lived  together  in  great  harmony  from  that  time  to  the 
day  of  his  death. 

"  But  the  most  curious  part  of  my  tale  remains  to  be  related. 
When  Howe  left  his  wife  they  lived  in  a  house  in  Jermyn 
Street,  near  St.  James'  Church;  he  went  no  farther  than  to  a 
little  street  in  Westminster,  where  he  took  a  room  for  which 
he  paid  five  or  six  shillings  a  week,  and  changing  his  name 
and  disguising  himself  by  wearing  a  black  wig  (for  he  was  a 
fair  man)  he  remained  in  this  habitation  during  the  whole 
time  of  his  absence.  He  had  had  two  children  by  his  wife 
when  he  departed  from  her,  but  they  both  died  young,  in  a 
few  years  after.  However,  during  their  lives,  the  second  or 
third  year  after  their  father  disappeared,  Mrs.  Howe  was 
obliged  to  apply  for  an  act  of  Parliament  to  procure  a  proper 
settlement  of  her  husband's  estate  and  a  provision  for  herself 
out  of  it  during  his  absence,  as  it  was  uncertain  whether  he 

149 


MYSTERIOUS  DISAPPEARANCES  AND 

was  alive  or  dead;  this  act  he  suffered  to  be  solicited  and 
passed,  and  enjoyed  the  pleasure  of  reading  the  progress  of 
it,  in  the  votes,  in  a  little  coffee  house  near  his  lodging,  which 
he  frequented.  Upon  his  quitting  his  house  and  family  in 
the  manner  I  have  mentioned,  Mrs.  Howe  at  first  imagined, 
as  she  could  not  conceive  any  other  cause  for  such  an  abrupt 
elopement,  that  he  had  contracted  a  large  debt  unknown  to 
her,  and  by  that  means  involved  himself  in  difficulties  which 
he  could  not  easily  surmount;  and  for  some  days  she  lived  in 
continual  apprehensions  of  demands  from  creditors,  of 
seizures,  executions,  etc.  But  nothing  of  this  kind  happened. 
"Mrs.  Howe,  after  the  death  of  her  children,  thought 
proper  to  lessen  her  family  of  servants  and  the  expenses  of 
her  house-keeping;  and  therefore  removed  from  her  house  in 
Jermyn  Street  to  a  little  house  in  Brewer  Street,  near  Golden 
Square.  Just  over  against  her  lived  one  Salt,  a  corn-chandler. 
About  ten  years  after  Howe's  abdication,  he  contrived  to 
make  an  acquaintance  with  Salt,  and  was  at  length  in  such  a 
degree  of  intimacy  that  he  usually  dined  with  Salt  once  or 
twice  a  week.  From  the  room  in  which  they  ate  it  was  not 
difficult  to  look  into  Mrs.  Howe's  dining-room,  where  she 
generally  sat  and  received  company;  and  Salt,  who  believed 
Howe  to  be  a  bachelor,  frequently  recommended  his  own  wife 
to  him  as  a  suitable  match.  During  the  last  seven  years  of 
this  gentleman's  absence,  he  went  every  Sunday  to  St.  James 
Church,  and  used  to  sit  in  Mr.  Salt's  seat,  where  he  had  a 
view  of  his  wife,  but  could  not  easily  be  seen  by  her.  After 
he  returned  home  he  never  would  confess,  even  to  his  most 
intimate  friends,  what  was  the  real  cause  of  such  singular 

150 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

conduct;  apparently  there  was  none,  but  whatever  it  was, 
he  was  certainly  ashamed  to  own  it.  Dr.  Rose  has  often 
said  to  me  that  he  believed  his  brother  Howe  would  never 
have  returned  to  his  wife  if  the  money  which  he  took  with 
him,  which  was  supposed  to  have  been  £1,000  or  £2,000,  had 
not  been  all  spent;  and  he  must  have  been  a  good  economist 
and  frugal  in  his  manner  of  living,  otherwise  his  money  would 
scarce  have  held  out;  for  I  imagine  he  had  his  whole  fortune 
by  him,  I  mean  what  he  carried  away  with  him,  in  money 
or  bank  bills,  and  daily  took  out  of  his  bag,  like  the  Spaniard 
in  'Gil  Bias,'  what  was  sufficient  for  his  expenses." 

Dr.  King  received  this  remarkable  story  from  Dr.  Rose 
and  Mr.  Salt,  whom  he  often  met  at  King's  Coffee  House, 
near  Golden  Square. 

Singular  and  eccentric  as  this  conduct  was,  a  not  dissimilar 
case  was  lately  brought  to  light  in  the  neighboring  State  of 
New  Jersey,  where  in  a  partition  suit  it  was  shown  that  one 
of  the  heirs  at  law  had  left  his  family  there,  and  was  supposed 
to  be  dead,  having  been  neither  seen  nor  heard  from  for  twenty- 
two  years,  until  one  of  his  sons  discovered  him  in  California. 

(Hoyt  vs.  Tuers,  35  N.  J.,  Equity  R.,  p.  360.) 

The  other  incident  to  which  I  alluded  occurred  in  this  city 
some  years  ago,  and  was  related  to  me  by  a  friend  who  hap- 
pened to  be  called  as  a  juror  in  the  Court  of  General  Sessions 
in  this  city,  on  a  trial  for  manslaughter.  The  facts  developed 
by  the  evidence  showed  that  the  prisoner  was  standing  at  the 
door  of  his  shop,  in  one  of  the  streets  leading  to  a  ferry,  when 
he  saw  an  intoxicated  man  coming  towards  him  pursued  by 

151 


MYSTERIOUS  DISAPPEARANCES  AND 

a  crowd  of  shouting  and  laughing  children.  As  he  came  op- 
posite the  shop,  in  a  sudden  access  of  drunken  fury  he  caught 
up  a  large  stone  and  was  about  to  hurl  it  among  his  pursuers, 
when  the  prisoner  ran  out  and  interfered  to  protect  them. 
A  quarrel  ensued,  blows  were  exchanged,  and  the  drunken 
man,  in  falling,  struck  his  head  heavily  on  the  pavement  and 
fractured  his  skull,  with  the  result  of  immediate  unconscious- 
ness soon  followed  by  death.  The  prisoner  was  acquitted, 
but  the  noticeable  fact  in  the  trial  was,  that  the  deceased 
never  recovered  consciousness  so  as  to  give  his  name,  and 
there  were  no  marks  on  his  clothing  or  papers  on  his  person 
by  which  he  could  be  identified.  Although  well  dressed, 
well  appearing,  and  to  all  seeming  a  person  of  some  impor- 
tance, the  police  were  never  able  to  obtain  any  clue  to  his 
identity,  and  he  was  buried  as  unknown;  somewhere  in  the 
world  a  family  has  mourned  the  loss  of  a  son,  perhaps  a  hus- 
band and  father,  and  another  name  has  been  added  to  the 
long  list  of  those  who  have  mysteriously  disappeared. 

The  cases  related  are  in  my  opinion  of  sufficient  interest 
to  justify  an  examination  of  the  law  relating  to  presumptions 
of  death.  Best  on  "Presumptions  of  Law  and  Fact  "  states 
the  rule  to  be  that  "the  death  of  any  person  once  shown  to 
have  been  alive  is  a  question  of  fact  to  be  determined  by  a 
jury;  and  when  the  body  is  not  forthcoming,  as  the  legal 
presumption  is  in  favor  of  the  continuance  of  life,  the  onus 
of  proving  the  death  lies  on  the  party  who  asserts  it."  When 
a  person  goes  abroad  and  has  not  been  heard  of  for  a  long 
time,  the  presumption  of  the  continuance  of  life  ceases  at  the 
expiration  of  seven  years  from  the  period  at  which  he  was  last 

152 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

heard  of.  The  same  rule  holds  generally  with  respect  to  a 
person  who  has  gone  away  from  his  usual  place  of  resort,  and 
of  whom  no  account  can  be  given,  but  the  presumption  does 
not  extend  to  the  time  of  his  death,  i.e.,  whether  he  died  at 
the  beginning  or  at  the  end  of  any  particular  period  of  the 
seven  years.  In  the  case  of  Watson  vs.  England,  which  came 
before  the  Court  of  Chancery  some  years  since,  it  was  at- 
tempted to  enforce  as  a  presumption,  that  a  female  who  had 
left  her  father's  house  in  1810,  and  had  not  been  heard  of 
for  thirty-four  years,  was  dead.  No  decision  was  come  to, 
the  Vice-Chancellor  observing,  from  the  great  uncertainty  of 
the  evidence,  that  if  he  presumed  her  death  the  woman  might 
walk  into  court  and  disprove  all.  In  one  case,  according  to 
Best,  the  Court  of  Queen's  Bench  said  that  they  could  not 
assume  judicially  that  a  person  alive  in  the  year  1034  was 
not  alive  in  1827  (Taylor's  Medical  Jurisprudence,  Vol.  I, 
p.  165).  So  Mr.  Phillips,  in  his  work  on  evidence,  states 
that  "the  presumption  of  continuance  of  human  life  ends,  in 
general,  at  the  expiration  of  seven  years  from  the  time  when 
the  person  was  last  known  to  be  living;  but  the  death  of  a 
party  may  be  presumed  in  a  shorter  time,  under  the  peculiar 
circumstances  of  the  case."  (Phillips  on  Evidence,  Vol.  Ill, 
p.  598.)  Mr.  Greenleaf  states  the  rule  and  the  reason  for  it 
as  follows:  "Other  presumptions  are  founded  on  the  ex- 
perienced continuance  or  permanency  of  longer  or  shorter 
duration  in  human  affairs.  When,  therefore,  the  existence 
of  a  person,  a  personal  relation,  or  a  state  of  things  is  once 
established  by  proof,  the  law  presumes  that  the  person, 
relation,  or  state  of  things  continues  to  exist  as  before,  until 

153 


MYSTERIOUS  DISAPPEARANCES  AND 

the  contrary  is  shown  or  until  a  different  presumption  is 
raised,  from  the  nature  of  the  subject  in  question.  Thus, 
where  the  issue  is  upon  the  life  or  death  of  a  person  once  shown 
to  have  been  living,  the  burden  of  proof  lies  upon  the  party 
who  asserts  the  death.  But  after  the  lapse  of  seven  years, 
without  intelligence  concerning  the  person,  the  presumption 
of  life  ceases  and  the  burden  of  proof  is  devolved  on  the  other 
party."  (Greeleaf  on  Ev.,  Part  1,  Chap.  IV,  Sect.  41.)  In 
like  manner  Mr.  Starkie:  "So,  where  the  existence  of  a  par- 
ticular individual  has  once  been  shown  it  will,  within  certain 
limits,  be  presumed  that  he  still  lives.  The  presumption  as 
to  a  man's  life,  after  a  number  of  years,  must  depend  upon 
many  circumstances:  his  habits  of  We,  his  age,  and  constitu- 
tion. The  probable  duration  of  life  of  a  person,  as  calculated 
upon  an  average,  may,  of  course,  be  easily  ascertained  in 
every  particular  case;  but  for  the  sake  of  practical  convenience 
the  law  lays  down  a  rule  in  some  instances,  which  appears  to 
have  been  very  generally  adopted,  that  after  a  person  has 
gone  abroad,  and  has  not  been  heard  of  for  seven  years,  it  is 
to  be  presumed  that  he  is  dead."  (Starkie  on  Evidence,  p. 
76.)  So  Mr.  Wharton:  "By  the  Canon  law,  no  length  of 
absence  gives  a  presumption  of  law  of  death;  the  presump- 
tion is  one  of  fact,  depending  on  the  concrete  case.  By  the 
English  Common  Law,  at  the  close  of  a  continuous  absence 
abroad  of  seven  years,  during  which  time  nothing  is  heard  of 
the  absent  person  by  those  who  would  naturally  have  heard 
of  him,  if  alive,  death  is  presumed,  as  a  presumption  of  law 
rebuttable  by  proof  or  counter  presumptions.  This  view  is 
accepted  in  most  jurisdictions  in  the  United  States.  But  if 

154 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

there  is  no  proof  of  unexplained  absence,  the  mere  lapse  of 
time,  even  supposing  it  would  make  the  party  eighty  years 
old,  if  living,  is  not  by  itself  enough  to  prove  death.  It  is 
otherwise  when  the  party  would  have  reached  the  limits 
beyond  which  life,  according  to  ordinary  observation,  is 
improbable,  though  even  when  one  hundred  years  is  reached 
the  conclusion  is  not  absolute.  With  other  circumstances 
(e.g.,  non-claimer  of  rights  or  exposure  to  peculiar  sickness  or 
other  calamity,  or  advanced  years),  death  at  a  far  earlier 
period  may  be  inferred.  .  .  . 

"It  has  been  incidentally  observed  that,  aside  from  the 
general  presumption  of  death  arising  from  unexplained 
absence  for  seven  years,  certain  facts  have  been  noticed  by 
the  Courts  as  affording  grounds  on  which  inferences  of  death, 
more  or  less  strong,  may  rest.  Among  these  facts  may  be 
noticed:  presence  on  board  a  ship  known  to  have  been  lost 
at  sea,  the  inference  of  death  increasing  with  the  length  of 
time  elapsing  since  the  shipwreck,  exposure  to  peculiar  perils 
to  which  death  will  be  imputed  if  the  party  has  not  been 
subsequently  heard  from;  ignorance  as  to  such  person,  after 
due  inquiry,  of  all  persons  likely  to  know  of  him,  if  he  were 
alive,  cessation  in  writing  of  letters,  and  of  communications 
with  relatives,  in  which  case  the  presumption  rises  and  falls 
with  the  domestic  attachments  of  the  party.  Thus  death 
may  be  inferred  by  a  jury  from  the  mere  fact  that  a  party 
who  is  domestic,  attentive  to  his  duties,  and  with  a  home  to 
which  he  is  attached,  suddenly,  finally,  and  without  explana- 
tion, disappears.  It  is  scarcely  necessary  to  say  that  evidence 
tending  to  rebut  such  presumption  (e.g.,  proof  that  the  alleged 

155 


MYSTERIOUS  DISAPPEARANCES  AND 

deceased  had  been  heard  from  by  letter  or  was  personally 
warned  in  a  litigated  suit)  is  always  relevant  for  what  it  is 
worth. 

"It  must  be  also  kept  in  mind  that,  in  any  view,  death  is  a 
matter  of  inference,  not  of  demonstration,  depending  upon 
an  identification  of  remains  as  to  which  there  is  always  a 
possibility  of  mistake."  (Wharton  on  Evidence,  Sects.  1274 
and  1277.) 

Having  collated  these  authorities  from  the  text-books,  it  is  in 
order  to  see  how  far  they  are  sustained  by  the  reported  cases. 

This  subject  is  elaborately  treated  by  the  late  Surrogate 
Bradford,  in  Eagle's  case  reported  in  3  Abbott's  Practice 
Reports,  page  218.  The  question  was  presented  on  the 
probate  of  a  will,  one  of  the  legatees  named  in  which,  William 
Eagle,  had  been  absent  between  five  and  six  years,  and  it 
became  necessary  to  determine  whether  he  died  before  or 
after  his  father,  the  testator.  The  facts  presented  showed 
that  he  had  been  a  sailor  from  the  age  of  sixteen  years.  He 
first  made  a  whaling  voyage  to  the  Pacific  and,  although 
absent  from  home  for  four  years,  does  not  seem  to  have  been 
heard  from  during  that  period.  His  subsequent  voyages 
were  principally  to  the  coast  of  South  America,  and  the  last 
intelligence  received  from  him  was  by  a  letter  written  at 
Baltimore  something  more  than  five  years  previous  to  his 
father's  death,  addressed  to  his  brother-in-law.  In  this 
communication  he  stated  that  he  had  just  arrived  at  that 
place  from  Montevideo  as  mate  of  a  vessel,  and  said,  "  Since 
I  have  arrived  I  have  been  offered  charge  of  an  hermaphro- 
dite brig  to  go  to  the  coast  of  Africa,  and  I  am  balancing  in 

156 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

my  own  mind  between  a  captaincy  and  an  old  vessel  and  the 
coast  fever.     I  shall  determine  in  a  few  days." 

He  was  never  heard  of  or  from  again. 

By  the  Roman  Law,  captivity  was  equivalent  to  civil  death, 
and  if  the  husband  were  taken  prisoner  the  wife  might 
marry  again;  but  no  time  was  prescribed  during  which  she 
should  await  his  return,  until  the  terms  of  four  and  ten  years 
were  successively  required  by  Constantine  and  Justinian 
(Novel  22,  Ch.  14).  By  Novel  117  (Ch.  11)  it  was  ulti- 
mately provided  that  there  should  be  proof  of  the  death 
before  the  wife  could  marry  again.  Absence,  however  long, 
without  certain  news  did  not  authorize  a  second  marriage, 
and  with  this  determination  the  Common  Law  agreed.  In 
respect  to  property  one  hundred  years  was  stated  as  the  limit 
of  the  presumption  of  life  in  the  case  of  absent  persons  quia 
is  finis  vitae  longoevi  hominis  est.  (Dig.  Lib.  7,  Tit.  1,  Sect.  56. 
Cod.  Lib.  1,  Tit.  2,  Sect.  23.)  In  conformity  with  this  rule, 
in  the  greater  number  of  countries  on  the  continent  which 
adopted  their  jurisprudence  from  the  civil  law,  the  doctrine 
prevailed  that  an  absent  person  should  be  presumed  to  be 
living  for  a  hundred  years  from  the  time  of  his  birth,  that 
being  the  longest  limit  of  ordinary  life.  Sunihame  mentions 
several  conflicting  views,  some  of  the  civilians  claiming 
seventy,  and  others  a  hundred  years,  as  the  proper  time. 
(Sunih.,  Pt.  6,  Sect.  13,  pi.  2.)  A  term  so  long  and  unreason- 
able eventually  became  shortened  by  custom  and  statute,  and 
the  several  periods  of  three,  five,  seven,  nine,  and  ten  years 
were  adopted  in  various  countries.  (Merlin,  Absent,  Act 
115,  Code  Civil.) 

157 


MYSTERIOUS  DISAPPEARANCES  AND 

The  Common  Law  is  in  accordance  with  the  Civil  Law  in 
the  adoption  of  the  principle  that  the  continuation  of  life  is 
presumed  until  the  contrary  be  shown.  The  statutes  relative 
to  bigamy  and  leases  of  life  (1  Jac.  1,  Ch.  11,  Sect.  2;  19  Car. 
2,  Ch.  6)  made  an  inroad  upon  this  doctrine  and  established 
a  rule,  which  was  ultimately  adopted  by  way  of  analogy  in 
cases  beyond  the  province  of  the  statutes.  Accordingly,  when 
a  party  has  been  absent  seven  years  since  any  intelligence  of 
him,  he  is,  in  contemplation  of  law,  presumed  to  be  dead. 
This  length  of  time  may  be  abridged,  and  the  presumption 
be  applied  earlier,  by  proof  of  special  circumstances  tending 
to  show  the  death  within  a  certain  period  —  for  example, 
that  at  the  last  accounts  the  person  was  dangerously  ill,  or  in 
a  weak  state  of  health  —  was  exposed  to  great  perils  of 
disease  or  accident;  that  he  embarked  on  board  of  a  vessel 
which  has  not  since  been  heard  from,  though  the  length  of  the 
usual  voyage  has  long  elapsed.  In  such  cases  it  is  to  be 
determined  as  a  question  of  fact  depending  on  evidence  when 
death  probably  occurred,  and  if  the  circumstances  known 
are  sufficient  to  authorize  such  a  conclusion,  the  decease  may 
be  placed  at  a  time  short  of  the  seven  years,  as  the  proof  may 
indicate.  But  when  there  are  no  facts  material  to  the  solu- 
tion of  the  question,  except  simply  absence  without  being 
heard  of,  then  at  the  end  of  seven  years  the  law  presumes 
death. 

The  learned  judge  then  discusses  the  question  of  when  the 
death  occurred,  whether  at  the  beginning  or  end  of  the  seven 
years,  or  at  what  other  time,  and  examines  the  English  cases 
on  this  point.  In  Rex.  vs.  The  Inhabitants  of  Harbourne 

158 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

(2  Ad.  and  E.,  540)  and  Nepau  vs.  Knight  (5  B.  and  Ad.,  93, 
2  Mee.  and  W.,  894),  the  Courts  of  King's  Bench  and  of 
Exchequer  adopted  the  doctrine  that  when  the  seven  years 
have  passed,  the  law  simply  presumes  death,  and  there  is  no 
presumption  as  to  the  time  of  death.  Lord  Denman,  in 
delivering  the  opinion  of  the  Court,  held  this  language:  "It 
is  true,  the  law  presumes  that  a  person  shown  to  be  alive  at  a 
given  time  remains  alive  until  the  contrary  be  shown;  but 
when  the  seven  years  have  passed  the  presumption  of  law 
relates  to  the  fact  of  death,  and  the  time  of  death,  wherever 
it  is  material,  must  be  a  subject  of  distinct  proof.  Whoever 
finds  it  important  to  establish  death,  at  any  particular  period, 
must  do  so  by  evidence  of  some  sort," 

After  examining  the  American  cases,  Judge  Bradford 
proceeds:  "There  can  be  no  doubt  that  under  certain  cir- 
cumstances this  is  to  be  treated  as  a  question  of  fact,  and  the 
language  of  Lord  Denman  is  in  that  view  strictly  pertinent 
when  he  says,  'Nothing  can  be  more  absurd  than  the  notion 
that  there  is  to  be  any  rigid  presumption  of  law  on  such  ques- 
tions of  fact  without  reference  to  accompanying  circumstances 
—  such,  for  instance,  as  the  age  or  health  of  the  party.  There 
can  be  no  such  strict  presumption  of  law.'  What,  however, 
is  a  Court  or  Jury  to  do,  when  there  are  no  accompanying 
circumstances  —  when  there  is  no  ground  in  fact  for  inferring 
death  at  any  particular  time?  The  question  is  not  whether 
those  presumptions  are  rigid  and  strict,  but  whether  there  are 
any  such  presumptions,  and  if  so,  what  is  their  effect  when 
there  is  an  entire  dearth  of  evidence  tending  to  guide  the 
conclusion  as  to  life  or  death.  Confessedly,  before  the  analogy 

159 


MYSTERIOUS  DISAPPEARANCES  AND 

drawn  from  the  statutes  of  bigamy  and  life  tenancies  pre- 
vailed, it  was  a  rule  of  evidence  to  presume  life,  unless  the 
contrary  was  shown.  That  rule  still  continues,  except  so  far 
as  it  has  been  modified  by  the  presumption  drawn  from  the 
statutes,  of  death,  after  seven  years'  absence  without  intelli- 
gence. The  practical  effect  of  these  two  rules,  if  both  are  to 
be  taken  as  subsisting,  is  that  whenever  the  law  is  invoked  as 
to  rights  depending  upon  the  life  or  death  of  the  absent 
party  he  is  to  be  deemed  as  living  until  the  seven  years  have 
expired,  and  after  that  is  to  be  deemed  as  dead.  Not  that 
the  law  finds  as  matter  of  fact  that  he  died  on  the  last  day  of 
the  seven  years,  but  that  rights  depending  on  his  life  or 
death  are  to  be  administered  as  if  he  had  died  on  that  day. 
It  is  impossible  to  say  when  he  died,  or  even  to  assert  as  a 
matter  of  fact  that  he  is  dead;  but  in  the  absence  of  all  evi- 
dence the  law  will  account  him  as  dead  at  a  certain  time  and 
not  before.  This  is  an  artificial  rule,  and  of  course  cannot 
be  expected  to  square  with  the  actual  fact.  It  is  the  logical 
result  of  the  presumptions,  founded  upon  reasons  of  con- 
venience, and  the  necessity  of  fixing  upon  some  limit  within 
which  the  relations  of  the  living  to  the  absent  are  to  be  de- 
termined, more  than  upon  any  strong  probabilities.  This  is 
the  meaning  of  our  statute  in  respect  to  life  estates,  which 
declares  that  if  the  life-tenant  shall  absent  himself  for  seven 
years,  and  his  death  shall  come  in  question,  'such  person 
shall  be  accounted  naturally  dead,'  in  any  action  concerning 
the  lands  in  which  he  had  the  estate  for  life,  unless  sufficient 
proof  be  made  that  he  is  still  living.  (1  Rev.  Stats.  749, 
Sect.  6;  See  Bigamy,  2  Rev.  Stats.  687;  Sect.  9.)  'He  shall  be 

160 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

accounted  dead.'  The  statute  so  treats,  just  as  the  Common 
Law  treated  and  accounted,  him  living  until  his  death  was 
proved.  In  neither  case  can  it  be  said  that  his  life  or  death 
has  been  actually  proved;  but  in  both  cases  it  may  be  said 
that  he  shall  be  accounted  living  until  by  reason  of  his  absence 
the  law  accounts  him  dead;  and  for  the  purposes  of  justice, 
the  rights  and  relations  of  parties  affected  by  his  life  or  de- 
cease shall,  in  the  absence  of  information,  be  determined  by 
this  technical  presumption. 

"This  certainly  seems  to  me  the  most  consistent  and  sym- 
metrical rule;  and  when  it  is  regarded  as  a  dry  legal  doctrine 
adopted  for  purposes  of  convenience,  and  from  the  necessity 
of  having  some  h'mited  period  for  the  determination  of  the 
rights  of  absent  persons,  and  not  as  a  determination  upon  the 
death  or  the  real  time  of  the  death,  there  would  appear  to  be 
no  grave  objection  against  it.  I  am  inclined  to  hold,  therefore, 
that  in  the  case  of  absent  persons  it  is  within  the  province  of 
the  Court  or  Jury  to  infer  from  circumstances,  if  any  appear 
in  proof,  the  probable  time  of  death,  but  that  if  no  sufficient 
facts  are  shown  from  which  to  draw  a  reasonable  inference 
that  death  occurred  before  the  lapse  of  seven  years,  the  person 
will  be  accounted,  in  all  legal  proceedings,  as  having  lived 
during  that  period." 

The  present  statutory  provision  in  this  State  is  as  follows: 
"A  person  upon  whose  life  an  estate  in  real  property  de- 
pends, who  remains  without  the  United  States,  or  absents 
himself  in  the  State  or  elsewhere,  for  seven  years  together,  is 
presumed  to  be  dead,  in  an  action  or  special  proceeding 
concerning  the  property  in  which  his  death  comes  in  question, 

161 


MYSTERIOUS  DISAPPEARANCES  AND 

unless  it  is  affirmatively  proved  that  he  was  alive  within  that 
time."  (Code  of  Remedial  Justice,  Sect.  841.)  This  some- 
what vague  language  is  defined  by  Chancellor  Walworth  in 
the  case  of  McCartee  vs.  Camel,  1  Barbour  Ch.  R.  456,  where 
he  said,  "When  the  person  whose  death  is  to  be  presumed 
is  in  fact  within  the  United  States  and  not  technically  beyond 
sea,  '  absenting  himself  in  this  State  or  elsewhere  '  must  mean 
absenting  himself  from  his  last  place  of  residence,  in  this  State 
or  in  the  United  States,  which  was  known  to  his  family  or  his 
relatives  who  would  be  likely  to  know  whether  he  was  living; 
and  from  whom  a  party  in  the  search  of  the  truth  would  be 
likely  to  make  inquiries.  The  mere  fact,  therefore,  that  the 
party  has  absented  himself  from  the  place  of  his  birth,  or 
from  his  original  domicile,  for  more  than  seven  years,  does 
not  raise  a  presumption  that  he  is  dead." 

Mr.  Charles  Marshall,  in  his  work  on  Insurance,  lays  down 
the  rule  that  "When  it  is  uncertain  whether  the  death  hap- 
pened within  the  time  limited,  this  is  a  question  of  fact  which 
must  be  left  to  the  decision  of  a  Jury,"  and  cites  as  authority 
the  case  of  Patterson  vs.  Black,  at  Nisi  Prius,  Hilary  Vacation, 
1780,  where  an  insurance  was  made  on  the  life  of  L.  Macleane, 
from  the  30th  of  January,  1772,  to  the  30th  of  January,  1778. 
In  an  action  on  the  policy  it  appeared  that  about  the  28th  of 
November,  1777,  he  sailed  from  the  Cape  of  Good  Hope  in 
the  Swallow  sloop  of  war;  which  ship,  not  being  afterwards 
heard  of,  was  supposed  to  have  been  lost  in  a  storm  off  the 
Western  Islands.  The  question  was,  whether  Macleane 
died  before  the  30th  of  January,  1778.  To  establish  the 
affirmative  of  that  question,  the  plaintiff  called  witnesses  to 

162 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

prove  the  ship's  departure  from  the  Cape  with  Macleane; 
and  several  captains  swore  that  they  sailed  the  same  day;  that 
the  Swallow  must  have  been  as  forward  in  her  course  as 
they  were,  on  the  13th  or  14th  of  January,  the  period  of  a 
most  violent  storm,  in  which  she  probably  was  lost,  and  that 
the  Swallow  was  much  smaller  than  their  vessels,  which 
with  difficulty  weathered  the  storm.  Lord  Mansfield  left  it 
to  the  jury  to  say  whether,  under  all  the  circumstances,  they 
thought  the  evidence  sufficient  to  convince  them  that  Mac- 
leane died  before  the  time  limited  in  the  policy;  adding  that 
if  they  thought  it  so  doubtful  as  not  to  be  able  to  form  an 
opinion,  the  defendant  ought  to  have  their  verdict.  They 
found  for  the  plaintiff.  (Marshall  on  Insurance,  p.  781.) 

It  is  impossible  to  say  in  this  case  that  the  verdict  of  the 
Jury  was  not  justified,  as  the  facts  presented  were  such  as  to 
create  a  reasonable  probability  that  the  vessel  in  which  the 
insured  had  embarked  was  lost  with  all  on  board,  and  the 
life  insurance  companies  are  frequently  called  upon  to  make 
payments  in  similar  cases.  The  only  requirements  that  can 
justly  be  made  are  conclusive  evidence  that  the  insured  set 
sail  on  the  missing  vessel,  and  a  strong  presumption  that  she 
was  lost  at  sea.  A  somewhat  similar  case  arose  not  long 
since  in  regard  to  a  gentleman  who  left  Boston  for  New  York 
by  the  Fall  River  boat.  He  was  proved  to  have  been  on  board 
of  the  boat  during  the  evening,  to  have  taken  supper  on  her, 
and  all  traces  of  him  were  lost  from  that  moment.  He  was 
a  man  over  50  years  of  age,  quite  near-sighted,  subject  to 
attacks  of  vertigo,  and  was  supposed  to  have  fallen  overboard ; 
but  although  large  rewards  were  offered  for  the  recovery  of 

163 


MYSTERIOUS  DISAPPEARANCES  AND 

the  body,  hand-bills  freely  distributed  along  both  shores  of 
the  Long  Island  Sound,  an  extensive  detective  force  employed 
and  stimulated  by  the  prospect  of  great  pecuniary  gain,  no 
result  was  obtained.  Here  it  is  easily  conceivable  that  the 
missing  man  might  have  been  engulfed  in  the  waters  of  the 
Sound,  and  his  body  buried  in  its  depths,  or  swept  out  to 
sea. 

A  similar  case  to  this  is  that  of  Boyd  vs.  New  England 
Mutual  Life  Insurance  Co.,  decided  by  the  Supreme  Court 
of  Louisiana  in  May,  1882,  in  which  the  facts  were,  that  Clot- 
worthy  Boyd,  the  subject  of  the  insurance,  left  Brashear  City 
in  July,  1875,  on  a  voyage  by  sea  to  Galveston.  In  company 
with  one  Dowling  he  occupied  a  stateroom  opening  on  the 
guards,  abaft  the  wheel-house,  near  which  was  a  space  where 
the  edge  of  the  vessel  was  protected  by  nothing  but  a  swing- 
ing chain.  Boyd,  during  the  day,  was  very  seasick,  and  he 
and  Dowling  sat  on  the  guards  opposite  the  space,  and  Boyd 
frequently  went  to  the  edge  and  vomited  over  the  chain. 
Late  at  night,  Boyd  continuing  to  suffer,  they  went  to  their 
stateroom,  and  Dowling  undressed  and  went  to  bed;  but 
Boyd  soon  after,  complaining  of  sickness  and  the  close  air, 
asked  Dowling  to  get  up  and  take  him  out.  Dowling  excus- 
ing himself,  he  went  out  alone,  and  has  never  since  been  seen 
or  heard  of.  Dowling,  on  awaking  in  the  morning,  found 
his  berth  vacant.  Not  specially  alarmed  at  first,  he  inquired 
of  the  steward,  who  told  him  he  had  not  seen  him;  then,  after 
waiting  a  while,  made  a  search  for  him  with  the  steward, 
without  finding  him.  The  steamer  arrived  in  Galveston 
about  10  A.M.,  and  Dowling  watched  the  passengers  go  ashore 

164 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

to  see  if  Boyd  would  come  out.  He  then  went  to  the 
residence  of  Boyd's  brother  in  Galveston,  and  informed  him 
of  the  circumstances.  Boyd  has  never  since  been  heard  of. 
His  valise,  which  was  his  only  baggage,  remained  on  the 
vessel,  and  his  hat  was  also  found  on  board,  though  the 
evidence  as  to  where  it  was  found  is  not  satisfactory.  Nearly 
seven  years  had  elapsed  since  the  date  of  the  disappearance, 
and  the  Court  was  not  advised  that  any  tidings  had  yet  been 
heard  of  him. 

Fenner,  J.,  in  delivering  the  opinion  of  the  Court,  said: 
"  If  the  proof  of  death  stood  upon  a  bare  presumption  follow- 
ing exclusively  from  the  mere  disappearance  of  Boyd,  we 
agree  with  the  counsel  for  defendant,  that  the  duration  of  his 
absence  without  being  heard  of  would  not  be  sufficient  to 
support  a  presumption  equivalent  to  proof  of  death,  under 
the  Articles  of  our  Code,  touching  absentees.  (C.  C.  Arts, 
57,  75.)  But  death,  like  all  other  facts,  may  be  established 
by  circumstantial  evidence  when,  from  the  nature  of  the  case, 
direct  evidence  is  not  accessible.  Absence,  without  being 
heard  of,  though  not  of  sufficient  duration  to  create  a  legal 
presumption  of  death,  may  yet  be  one  of  other  attendant  and 
supporting  circumstances,  which,  taken  together,  would 
satisfy  the  mind  and  conscience  of  the  Judge  or  jury  that 
the  party  was  dead.  This  is  all  that  is  required.  Thus, 
disappearance  under  circumstances  of  shipwreck,  or  earth- 
quake, or  battle,  or  explosion,  or  like  perils,  might  well 
produce  such  conviction.  And  this  Court  has  held  that  in 
such  matters  it  is  essentially  within  the  province  of  the 
Judge  to  draw  the  line  of  distinction  by  the  exercise  of  a 

165 


MYSTERIOUS  DISAPPEARANCES  AND 

sound  discretion,  founded  on  the  facts  of  each  particular 
case." 

Succession  of  Vogal,  16  An.,  139; 

Succession  of  Jones,  12  Ib.,  397; 

The  Reporter,  Vol.  xv.,  p.  147. 

But  there  are  cases,  not  infrequent,  where  no  such  solution 
is  possible,  and  the  cause  of  the  absence  is  totally  unexplained. 
One  such  is  that  of  Hancock,  Admr.,  vs.  The  American  Life 
Insurance  Co.,  in  the  Supreme  Court  of  Missouri,  reported 
in  5th  Bigelow  Life  and  Accident  Reports,  248.  The  facts 
shown  were  that  the  supposed  decedent,  Henry  C.  Morris, 
was  a  single  man;  that  for  many  years  previous  to  his  alleged 
death  he  had  been  in  the  habit  of  spending  his  time  in  the 
South,  engaged  in  mining  speculation;  that  he  left  the  South 
and  was  for  some  time  visiting  his  friends  and  relations  in 
Quincy,  Illinois,  and  from  there  went  East,  and  during  the 
winter  of  1860  and  1861  he  boarded  with  a  Dr.  Scott,  in  New 
York  City.  At  Albany  he  became  interested  in  a  patent 
stove,  which  he  designed  introducing  in  the  South,  and  had 
a  pattern  made  and  shipped  there  for  him.  The  Rebellion 
at  that  time  was  about  to  commence,  and  he  was  open  and 
outspoken  in  his  sympathy  with  the  Southern  people,  and 
declared  his  purpose  to  go  South  and  take  up  arms  in  their 
defense.  His  health  seems  to  have  not  been  very  good,  though 
the  witnesses  think  that  he  was  able  to  attend  to  business. 
About  the  1st  of  March,  1861,  he  left  his  room  at  Dr.  Scott's, 
with  the  intention  of  going  to  Brooklyn,  and  did  not  return. 
His  clothes  and  valise  were  left  in  his  room,  but  they  were  of 
little  value.  His  friends  and  relatives  testified  that  they  never 

166 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

saw  or  heard  of  him  any  more.  Dr.  Scott  testifies  that  he 
received  a  letter  from  him  in  the  September  following,  but 
there  was  testimony  going  to  show  that  he  was  mistaken,  and 
it  is  evident  that  the  jury  must  have  thought  so.  It  appears 
also  that  Morris  was  indebted  to  Dr.  Scott,  and  also  to  a  lady, 
for  borrowed  money;  that  previously  he  was  in  the  habit  of 
writing  to  his  friends  and  relatives,  but  after  his  disappear- 
ance, about  the  1st  of  March,  they  never  received  any  letters 
from  him. 

Upon  these  facts  the  question  was  submitted  to  the  jury 
whether  Morris  died  before  June  6,  1861,  at  which  date  the 
policy  lapsed  of  non-payment  for  premium,  and  they  found 
that  he  did.  In  reviewing  the  case  in  the  Appellate  Court, 
Chief  Justice  Wagner  says:  "It  may  well  be  conceded  that 
where  a  person  who  is  studious  in  his  habits,  attentive  to  his 
business,  has  a  fixed  and  permanent  residence,  and  is  sur- 
rounded by  those  influences  which  are  calculated  to  endear 
him  to  his  home,  suddenly  and  unaccountably  disappears,  a 
presumption  may  arise  which  would  warrant  a  jury  in  finding 
that  he  is  dead.  But  will  the  circumstances  of  this  case 
warrant  the  admission  of  any  such  doctrine  ?  Morris  had 
no  family,  he  had  no  fixed  or  permanent  place  of  abode. 
For  years  he  had  been  residing  in  the  South,  being  in  different 
States,  and  engaged  in  different  places.  He  told  his  relatives 
that  he  was  going  back  to  the  South.  He  made  arrangements 
to  introduce  a  patent  there.  He  was  warm  in  his  sympathies 
for  the  Southern  cause,  and  expressed  his  determination  to 
take  up  arms  in  its  defense.  No  intention  was  ever  shown 
of  staying  in  New  York  or  with  his  friends  in  the  North. 

167 


MYSTERIOUS  DISAPPEARANCES  AND 

According  to  his  declared  design  he  was  going  South,  as  thou- 
sands of  others  did  in  those  times. 

"The  case  therefore  simply  presents  a  sudden  and  unex- 
plained absence  on  the  part  of  Morris,  without  being  accom- 
panied with  any  surrounding  perils,  and  with  his  often 
repeated  declaration  that  he  intended  to  go  to  another  part 
of  the  country  where  his  interests  and  sympathies  were  cen- 
tred. The  law  will  now  presume  that  he  is  dead,  but  there 
is  no  presumption  that  he  died  previous  to  the  expiration  of 
seven  years  from  his  disappearance,  and  there  was  no  evi- 
dence of  death  prior  to  the  8th  of  June,  1861,  to  entitle  the 
case  to  be  submitted  to  the  jury." 

The  judgment  was  therefore  reversed.  The  case  conceded 
in  Hancock  vs.  American  Life  Insurance  Co.  (supra),  when  a 
person,  "studious  in  his  habits,  attentive  to  his  business,  hav- 
ing a  fixed  and  permanent  residence,  and  surrounded  by 
those  influences  which  are  calculated  to  endear  him  to  his 
home,  suddenly  and  unaccountably  disappears,"  arose  in 
Iowa,  and  was  referred  to  in  the  opinion  quoted.  In  this 
case  (Tisdale  vs.  Connecticut  Mutual  Life  Ins.  Co.,  26  Iowa 
R.,  170),  the  insured  was  a  young  man  of  exemplary  habits, 
excellent  character,  of  fair  business  prospects,  respectably 
connected,  and  of  the  most  happy  domestic  relations.  He 
had  the  fullest  confidence  of  his  friends,  and  the  entire  affec- 
tion of  his  wife,  and  was  living  in  apparent  happiness,  with 
no  cause  of  discontent  with  his  condition,  which  would  have 
influenced  him  to  break  the  domestic  and  social  ties  with 
which  he  was  so  pleasantly  bound  to  life.  Visiting  Chicago, 
Sept.  25,  1866,  upon  business,  he  was  last  seen  by  an 

168 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

acquaintance  on  the  corner  of  Lake  and  Clark  streets,  in  that 
city,  about  3  P.M.,  of  that  day;  no  trace  of  him  was  afterwards 
discovered,  though  his  friends  made  every  effort  to  find  him 
and  ascertain  the  cause  of  his  mysterious  disappearance.  A 
large  reward  was  offered  through  the  newspapers  for  any 
information  that  would  lead  to  his  discovery,  either  dead  or 
in  life.  The  detective  police  were  employed  to  search  for 
him  without  results.  No  tidings  were  ever  received  of  him, 
and  not  the  faintest  trace  of  the  cause  or  manner  of  his  dis- 
appearance was  ever  discovered. 

He  gave  no  intimation  to  any  one  of  an  intention  to  absent 
himself,  and  the  latest  declaration  of  his  intentions  was  to  the 
effect  that  he  expected  to  leave  Chicago  on  the  day  of  his 
disappearance  to  join  his  wife,  at  Dubuque.  He  owed  no 
debts  amounting  to  any  considerable  sum,  and  had  made 
payments  of  small  ones  about  the  day  of  his  disappearance. 
His  valise,  containing  clothing  and  other  articles  commonly 
carried  by  travelers,  was  found  at  his  hotel,  and  his  bill  was 
unpaid.  In  the  Circuit  Court,  the  jury  was  instructed  that 
to  raise  a  presumption  of  death  within  a  time  less  than  seven 
years  it  must  be  shown  that  the  person  alleged  to  be  dead 
was  subject  to  some  special  peril,  which  might  reasonably 
be  supposed  to  have  produced  his  death. 

In  the  Supreme  Court  this  instruction  was  declared  to  be 
wrong,  and  it  was  held  that  evidence  of  character,  habits, 
domestic  relations,  and  the  like,  making  the  abandonment  of 
home  and  family  improbable,  and  showing  a  want  of  all  those 
motives  which  can  be  supposed  to  influence  men  to  such  acts, 
may  be  sufficient  to  raise  the  presumption  of  death,  or  from 

169 


MYSTERIOUS  DISAPPEARANCES  AND 

which  the  death  of  one  absent  and  unheard  from  may  be 
inferred,  without  regard  to  the  duration  of  such  absence. 

This  decision  carries  the  doctrine  of  presumption  to  an 
extreme  and,  to  my  mind,  a  very  dangerous  length.  It  in 
effect  reverses  the  old  doctrine  of  a  presumption  of  life,  and 
presumes  that  a  man  who  leaves  his  home  and  friends  is  dead, 
unless  some  good  reason  can  be  discovered  for  his  departure. 
It  ignores  the  limitations  stated  by  Judge  Bradford,  in  Eagle's 
case  (supra)  of  "special  circumstances  tending  to  show  the 
death  within  a  certain  period  —  for  example,  that  at  the  last 
accounts,  the  person  was  dangerously  ill,  or  in  a  weak  state  of 
health,  was  exposed  to  great  perils  of  disease  or  accident,  or 
that  he  had  embarked  on  board  of  a  vessel  which  has  not 
since  been  heard  from,  though  the  length  of  the  usual  voyage 
has  long  elapsed."  It  assumes  simply  that  because  a  motive 
cannot  be  discovered,  none  existed,  and  that  mere  absence, 
without  satisfactory  explanation,  raises  a  presumption  of 
death.  In  a  case  arising  on  another  policy  upon  the  same 
life  (Tisdale  vs.  Midual  Benefit  Life  Ins.  Co.)  in  the  Circuit 
Court  of  the  United  States  in  Iowa,  reported  in  4th  Bigelow's 
Life  and  Accident  Ins.  Reports,  page  58,  Mr.  Justice  Lowell, 
in  charging  the  jury,  said,  "Supposing  you  should  adopt  the 
defendant's  theory  of  the  case,  looking  at  it  from  this  stand- 
point, to  wit,  that  Tisdale  was  not  dead  at  the  time  letters 
of  administration  were  issued,  but  that  he  had  absconded; 
in  the  absence  of  any  motive  on  his  part  to  abscond,  it  will 
not  be  presumed  that  he  did  abscond;  but  if  from  the  evidence 
the  jury  find  the  fact  to  be  that  he  did  abscond,  then  the 
want  of  motive  would  have  nothing  to  do  with  the  case.  If 

170 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

the  jury  find  that  he  did  abscond,  then  it  would  follow  that 
some  motive  existed.  The  absence  of  motive  to  abscond  is 
a  material  fact,  to  be  considered  in  a  doubtful  case.  If  the 
principal  fact  be  proved,  that  is,  if  this  party  was  seen  at 
Baxter  Springs  sometime  subsequently  to  the  appointment 
of  an  administrator,  and  this  fact  is  shown  as  proof  of  his 
having  absconded,  then  the  fact  of  a  want  of  motive  to  ab- 
scond is  unimportant,  because  we  cannot  always  look  into  the 
human  heart  and  discover  its  motives.  Crimes  are  frequently 
committed  of  a  very  grave  nature,  and  yet  we  can  discover 
no  motive.  In  general,  motives  must  be  inferred  from  facts, 
rather  than  facts  inferred  from  motives.  If  it  is  established 
by  proof  that  an  act  has  been  done,  we  know  there  has  been 
some  motive  for  it,  though  we  cannot  see  what  that  motive 
was." 

This  reasoning  appears  to  me  to  be  sound,  and  to  dispose 
of  the  difficulty  which  induced  the  Supreme  Court  to  assume 
that  the  insured  must  be  dead  because  they  could  find  no 
motive  for  his  leaving  his  home,  family,  and  friends.  The 
Judge  well  intimated  that  no  human  being  can  read  the  mind 
or  appreciate  all  the  motives  which  govern  the  actions  of 
another;  and  the  fact  that  we  cannot  discover  the  reasons 
which  led  a  man  to  commit  a  certain  act,  does  not  at  all 
prove  that  he  did  not  have  reasons  satisfactory  to  his  own 
mind,  and  justifying,  to  him,  his  course  of  action.  I  am 
incapable  of  appreciating  that  the  presumption  that  a  man 
could  be  done  to  death  or  commit  suicide  in  a  crowded  city 
without  leaving  a  trace  behind  him  is  any  less  violent  than 
that  he  should  have  had  reasons  for  hiding  himself  from  all 

171 


MYSTERIOUS  DISAPPEARANCES  AND 

who  knew  him,  with  which  his  family  and  friends  were  not 
acquainted.  For  there  are  only  a  few  conceivable  explana- 
tions of  so-called  mysterious  disappearance.  If  alive,  the 
missing  person  must  have  deliberately  absconded,  been 
abducted,  or  confined  in  some  hospital  or  asylum  as  the 
result  of  sudden  bodily  or  mental  disease  or  accident;  if  dead, 
he  must  either  have  been  murdered,  killed  by  accident,  or 
committed  suicide,  under  circumstances  which  either  left  no 
trace  of  him  whatever,  or  precluded  the  possibility  of  identi- 
fication. That  one  of  the  latter  group  of  contingencies  is 
possible,  cannot  be  denied;  but  that,  in  the  absence  of  any 
proof  whatever,  one  of  them  should  be  presumed  rather  than 
one  of  the  former  group  seems  to  be  unwarranted  by  what 
we  know  of  natural  laws.  On  the  contrary,  considering  the 
presumption  of  life,  I  think  we  are  bound  to  assume  some 
contingency  consistent  with  that  presumption,  rather  than 
the  contrary. 

There  is  no  wild  improbability  in  assuming  that  a  person 
situated  as  was  the  insured  in  the  case  last  cited  may  abscond 
from  home  and  conceal  himself  elsewhere,  for  reasons  un- 
known to  others  but  satisfactory  to  himself.  And  this  is  the 
only  case  I  have  found  in  which  it  was  held  that  mere  absence 
in  itself,  and  unaccompanied  by  any  proof  of  circumstances 
importing  a  danger  to  life,  was  sufficient  to  justify  a  jury  in 
finding  the  fact  of  death.  The  opinion  is  therefore  supported 
neither  by  reason  nor  authority,  and  may  be  regarded  as  of 
slight  value  as  a  precedent. 

Some  years  ago  life  policies  were  issued  containing  a  pro- 
vision that  no  presumption  of  death  should  arise  from 

172 


PRESUMPTIONS  OF  DEATH  IN  INS.  CASES 

disappearance  until  the  policy  should  have  been  continued  in 
force  by  the  payment  of  premiums  throughout  the  expecta- 
tion of  life  of  the  person  upon  whose  death  the  contract 
matured  according  to  the  company's  table  of  mortality, 
reckoned  from  the  date  of  the  policy.  This  is  probably  the 
fairest  rule  for  all  concerned,  as  it  gives  the  company  what  it 
had  the  right  to  expect  when  it  issued  the  policy,  and  requires 
the  beneficiary  to  pay  what  he  should  have  expected  to  pay. 
In  the  absence  of  any  such  provision  the  question  of  death  is 
one  of  fact,  and  the  rule  of  presumption  appears  to  be,  that 
if  the  insured  was  exposed  to  any  circumstances  of  special 
peril,  such  circumstances  conjointly  with  his  absence  will 
justify  the  jury  in  finding  the  fact  of  death,  but  without  such 
circumstances,  mere  unexplained  absence  will  not  sustain 
such  a  finding  before  the  expiration  of  seven  years.  After 
that  period  the  burden  of  proof  shifts,  and  it  devolves  upon 
the  defendant  company  to  prove  that  the  insured  is  still  in 
being. 


173 


THE  LAW  OF   MORTMAIN 

A  PAPER  READ  BEFORE  THE  SOCIETY  OF  THE  *.  B.  K. 
ALUMNI  IN  NEW  YORK  ON  MAY  15™,  1884 

Reprinted  from  "  The  Statement"  of  The  Mutual  Life  Insurance 
Company  of  New  York 


r 


THE  wisdom  of  mankind  concedes  it  to  be  an  axiom  re- 
sulting from  its  experience,  that  refined  architecture  is  at 
once  a  product  and  a  proof  of  a  high  civilization.  The  ruins 
of  Baalbec  are  accepted  as  conclusive  evidence  that  a  cul- 
tured and  intellectual  race  once  inhabited  its  walls,  and  the 
story  of  historic  times  shows  the  improvement  and  develop- 
ment of  architecture  pari  passu  with  the  civilization  of  the 
nations.  From  the  rude  huts  of  a  few  herdsmen  clustered 
together  on  the  banks  of  the  Tiber  to  the  magnificent  Rome 
of  the  Emperors  is  an  enormous  stride,  but  the  change  took 
place  slowly  by  perceptible  gradations,  and  marked  the 
gradual  education  and  refinement  of  the  people.  As  wealth 
accumulated,  there  arose  a  class  who  were  not  forced  to  un- 
remitting labor,  by  the  incessant  needs  of  their  existence, 
leisure  was  afforded  for  the  study  first  of  comfort  and  then  of 
luxury,  until  the  stately  palace  and  the  magnificent  bath,  with 
all  their  resources  for  mental  and  physical  enjoyment,  re- 
placed the  humble  roof  which  yielded  shelter  for  the  night. 
In  like  manner  the  early  settlers  in  this  country  had  neither 
time  nor  money  to  devote  to  the  refinements  of  life.  The 
daily  battle  for  existence  with  the  opposing  forces  of  savage 
nature  and  more  savage  man  was  so  severe  and  exhausting 

177 


THE  LAW  OF  MORTMAIN 


as  to  require  the  application  of  all  their  energies  to  the  mere 
struggle  for  life.  Sed  tempora  mutantur  et  nos  mutamur  cum 
ittis.  The  battle  has  been  won,  and  the  present  generation 
is  enjoying  its  fruits.  With  that  success  has  come  large 
accumulated  wealth,  and  with  it  taste,  refinement,  and  a 
desire  to  cultivate  the  esthetic  side  of  our  natures.  The 
science  of  architecture  has  been  widely  appealed  to  in  order 
to  gratify  this  desire,  and  the  expensive  and  often  elegant 
buildings  which  have  arisen  in  every  direction  over  the  coun- 
try within  the  last  twenty-five  years  are  the  result.  That 
these  are  almost  universally  the  work  either  of  the  General 
or  State  Governments,  or  of  corporations,  is  a  necessary 
result  of  the  laws  of  the  country  which  make  it  impossible 
for  an  individual  to  "found  a  family,"  in  the  English  sense  of 
that  expression,  and  deprive  him  of  a  motive  for  extensive 
investments  in  a  single  building.  On  the  Continent  of 
Europe,  the  tendency  of  corporations,  such  as  insurance 
companies  and  banks,  which  from  their  nature  have  large 
amounts  of  capital,  to  invest  in  real  estate,  is  very  marked, 
and  the  traveler  whose  eye  is  attracted  by  the  elegant  appear- 
ance of  long  rows  of  dwellings,  or  extensive  stores,  in  some 
of  the  large  cities,  is  surprised  to  find  on  inquiry  that  many 
of  them  are  owned  by  corporations.  The  fact  that  this 
policy  has  been  long  pursued  and  meets  the  approval  of  the 
governments  and  people  of  France  and  Germany  seems  to 
prove  that  such  investments  work  no  public  injury  there, 
and  leads  us  to  ask  why  they  should  be  forbidden  here. 

Among  the  peculiar  prejudices  which  we  have  inherited 
from  England,  in  common  with  the  other  countries  colonized 

178 


THE   LAW  OF  MORTMAIN 


from  that  fertile  mother,  is  the  one  which  deems  the  possession 
of  large  quantities  of  land  by  corporations  injurious  to  the 
public  welfare.  I  presume  it  to  be  beyond  question  that  the 
repeated  enactment  of  statutes  of  mortmain,  from  the  time 
of  Magna  Charta,  down  through  the  reigns  of  successive 
monarchs  to  the  existing  statute  of  George  II,  has  begotten 
and  fostered  a  blind,  unthinking  impulse  which  shows  itself 
in  the  limitations  usually  inserted  by  American  legislatures 
in  the  charters  of  corporations,  forbidding  them  to  hold  real 
estate  beyond  such  as  may  be  necessary  for  the  purposes  of 
their  business,  although  the  original  reasons  for  such  restric- 
tion have  long  since  disappeared. 

For  the  benefit  of  such  of  my  hearers  as  are  not  versed  in 
the  technical  phrases  of  the  law,  I  cite  from  Burrill's  Law 
Dictionary  the  definition  of  the  term  mortmain:  "A  dead 
hand;  a  condition  of  property  in  which  it  is  held  without  the 
power  of  change  or  alienation.  A  term  originally  applied 
to  the  possession  of  land  by  ecclesiastical  bodies,  the  members 
of  which  (being  professed)  were  reckoned  dead  persons  in 
law.  Afterwards  applied  to  purchases  and  acquisitions  by 
any  corporate  body.  Thence  the  statutes  prohibiting  con- 
veyances of  land  by  deed  or  will  to  a  corporation  were  termed 
statutes  of  mortmain,  or  mortmain  acts." 

This  country  is  young  and  growing,  and  in  all  probability 
for  years  to  come,  as  for  years  past,  investments  in  real  estate 
will  prove  the  most  safe  and  profitable.  The  family  which 
has  been  able  to  retain  the  large  farm,  or  the  ancestral  estate, 
and  meet  the  annually  recurring  taxes  and  other  necessary 
burdens  upon  its  land,  has  a  sure  fortune  of  which  no  acci- 

179 


THE   LAW  OF  MORTMAIN 


dent  can  deprive  it.  The  statistics  of  this  county  show  from 
year  to  year  a  steady  rapid  appreciation  of  its  real  property, 
which,  of  course,  enures  to  the  benefit  of  the  owners.  As 
many  corporations,  whatever  their  main  object,  must,  as  an 
incident  of  their  work,  invest  their  accumulated  funds  for  a 
longer  or  shorter  period,  and  as  it  is  for  the  interest  of  their 
stockholders  that  such  investments  should  be  made  in  securi- 
ties that  are  not  only  safe,  but  appreciating  in  value,  it  seemfc 
unjust  that  they  should  be  so  limited  in  their  choice  of  in- 
vestments as  to  be  prohibited  from  placing  their  funds  in  the 
best  and  safest  of  all  securities,  unless  there  be  some  strong 
controlling  reason  of  public  policy  for  the  prohibition.  In 
the  present  day,  when  every  class  of  business  is  conducted 
by  corporations,  there  is  scarcely  an  individual  who  is  not 
directly  or  indirectly  interested  in  the  prosperity  of  some 
banking,  insurance,  manufacturing,  mining,  or  other  asso- 
ciation, and  it.  is  therefore  well  worth  our  while  to  inquire 
whether  any  such  reason  does  in  fact  exist. 

Let  me  pause  for  a  moment  to  explain,  if  not  to  qualify, 
the  statement  made  in  regard  to  the  steadily  increasing  value 
of  real  estate  in  this  country. 

It  is  true  that  this  increase  has  been  mainly  in,  and  in  the 
neighborhood  of,  cities,  for  while  the  aggregate  valuation  of 
real  estate  has  largely  augmented,  average  farming  land  in 
New  England  and  the  Middle  States  is  cheaper  than  twenty 
years  ago.  For  this  there  are  two  causes,  both  of  which  may 
be  considered  to  be  of  a  somewhat  local  and  temporary 
character,  one  being  the  development  of  agriculture  in  the 
West,  and  the  other,  of  manufactures  in  the  East.  The  more 

180 


THE   LAW  OF  MORTMAIN 


fertile  lands  of  the  newer  States  drew  away  many  of  the  more 
enterprising  and  especially  the  youthful  farmers  from  the 
bleak  hills  of  New  England  and  the  exhausted  lands  of 
Virginia  to  the  rolling  prairies  of  the  interior,  but  the  increas- 
ing difficulty  of  procuring  transportation  for  their  crops  from 
these  distant  fields  to  a  market,  and  the  over-abundant  supply 
of  labor  for  factories,  is  already  beginning  to  revive  agricul- 
ture in  the  East,  and  will  doubtless  continue  to  have  that 
effect.  The  increase  of  manufacturing  centres  in  the  West 
also  affords  a  more  abundant  home  market,  which  will  de- 
mand and  receive  consideration  and  supply,  as  that  section 
consumes  more  of  its  own  products  and  has  less  surplus  to 
spare.  As  the  area  of  grain  production  rolls  farther  and 
farther  westward,  the  cost  of  transportation  must  increase, 
until  the  growth  of  grain  in  this  part  of  the  country  again 
becomes  remunerative,  and  the  farming  land  again  reaches 
its  former,  if  not  a  still  higher,  value. 

I  propose,  then,  to  examine  briefly  into  the  origin  of  the 
statutes  of  mortmain,  and  the  causes  which  gave  them  birth. 
We  pride  ourselves  as  a  people  (and  very  justly)  upon  our 
willingness  to  throw  off  the  shackles  of  old  habits  and  in- 
herited prejudices,  and  be  guided  by  the  pure  light  of  reason. 
The  mere  fact  that  an  abuse  or  a  wrong  has  existed  for  cen- 
turies is,  with  us,  no  argument  for  its  continuance,  if  it  can 
be  demonstrated  that  an  abuse  or  a  wrong  really  exists. 
That  the  limitation  of  the  Common  Law  right  of  corporations 
to  hold  real  estate  to  any  extent  they  think  proper  is  a  wrong 
seems  to  me  to  be  susceptible  of  proof. 

Sir  William  Blackstone,  in  his  Commentaries  on  the  Laws 
181 


THE  LAW  OF  MORTMAIN 


of  England,  gives  the  following  reasons  for  the  existence  of 
corporations:  "As  all  personal  rights  die  with  the  person,  and, 
as  the  necessary  forms  of  investing  a  series  of  individuals 
one  after  another  with  the  same  identical  rights,  would  be 
very  inconvenient,  if  not  impracticable,  it  has  been  found 
necessary,  when  it  is  for  the  advantage  of  the  public  to  have 
any  particular  rights  kept  on  foot  and  continue,  to  constitute 
artificial  persons  who  may  maintain  a  perpetual  succession, 
and  enjoy  a  kind  of  legal  immortality." 

These  artificial  persons  thus  resembling,  or  rather  being 
substitutes  for,  individuals,  have  certain  powers,  rights,  and 
capacities  inherent  in  their  very  nature.  It  is  sufficient  for 
my  purpose  to  state  on  the  same  high  authority  that  among 
these  rights,  as  a  necessary  consequence  of  their  existence,  is 
the  power  to  purchase  lands  and  hold  them  for  the  benefit  of 
themselves  and  their  successors. 

A  corporation,  therefore,  at  common  law,  had  the  same 
right  to  purchase,  hold,  dispose  of  and  trade  in  real  estate, 
as  an  individual,  and  the  inquiry  is  naturally  suggested,  why 
and  how  was  this  right  restricted.  To  answer  this,  I  will 
again  have  recourse  to  the  great  storehouse  of  Blackstone's 
Commentaries:  "By  the  common  law,"  says  that  writer, 
"any  man  might  dispose  of  his  lands  to  any  other  private 
man  at  his  own  discretion,  especially  when  the  feudal  restraints 
of  alienation  were  worn  away.  Yet  in  consequence  of  these 
it  was  always  and  is  still  necessary  for  corporations  to  have  a 
license  in  mortmain  from  the  crown  to  enable  them  to  pur- 
chase lands;  for  as  the  king  is  the  ultimate  lord  of  every  fee, 
he  ought  not,  unless  by  his  own  consent,  to  lose  his  privilege  of 

182 


THE  LAW  OF  MORTMAIN 


escheats  and  other  feudal  profits  by  the  vesting  of  lands  in 
tenants  that  can  never  be  attainted  or  die.  .  .  .  When  these 
donations  (i.e.,  to  religious  houses)  began  to  grow  numerous, 
it  was  observed  that  the  feudal  services,  ordained  for  the 
defense  of  the  kingdom,  were  every  day  visibly  withdrawn; 
that  the  circulation  of  landed  property  from  man  to  man 
began  to  stagnate;  and  that  the  lords  were  curtailed  of  the 
fruits  of  their  seigniories,  their  escheats,  wardships,  reliefs, 
and  the  like;  and  therefore,  in  order  to  prevent  this,  it  was 
ordained  by  the  second  of  King  Henry  Ill's  great  charters, 
and  afterwards  by  that  printed  in  our  common  statute  books, 
that  all  such  attempts  should  be  void,  and  the  land  forfeited 
to  the  lord  of  the  fee." 

Another  reason  for  these  enactments  is  hinted  at  by  the 
same  author,  in  describing  the  gradual  encroachments  of  the 
Papal  power  upon  the  independence  of  the  Church  of  Eng- 
land. He  says,  that  "Not  content  with  the  ample  provision 
of  tithes,  which  the  law  of  the  land  had  given  to  the  parochial 
clergy,  they  endeavored  to  grasp  at  the  lands  and  inheritances 
of  the  kingdom,  and  (had  not  the  legislature  withstood  them) 
would  by  this  time  have  probably  been  masters  of  every  foot 
of  ground  in  the  kingdom.  To  this  end  they  introduced  the 
monks  of  the  Benedictine  and  other  rules,  men  of  sour  and 
austere  religion,  separated  from  the  world  and  its  concerns 
by  a  vow  of  perpetual  celibacy,  yet  fascinating  the  minds  of 
the  people  by  pretenses  to  extraordinary  sanctity,  while  all 
their  aim  was  to  aggrandize  the  power  and  extend  the  in- 
fluence of  their  grand  superior,  the  Pope.  And  as,  in  those 
times  of  civil  tumult,  great  rapines  and  violence  were  daily 

183 


THE  LAW  OF  MORTMAIN 


committed  by  overgrown  lords  and  their  adherents,  they  were 
taught  to  believe  that  founding  a  monastery  a  little  while 
before  their  deaths  would  atone  for  a  life  of  incontinence, 
disorder,  and  bloodshed.  Hence  innumerable  abbeys  and 
religious  houses  were  built  within  a  century  after  the  Con- 
quest, and  endowed,  not  only  with  the  tithes  of  parishes 
which  were  ravished  from  the  secular  clergy,  but  also  with 
lands,  manors,  lordships,  and  extensive  baronies.  And  the 
doctrine  inculcated  was,  that  whatever  was  so  given  to  or 
purchased  by  the  monks  and  friars  was  consecrated  to  God 
himself;  and  that  to  alienate  or  take  it  away  was  no  less  than 
the  sin  of  sacrilege." 

Hume  substantially  repeats  the  first  of  these  reasons  in  his 
History  of  England,  when  he  says  of  Edward  I:  "He  seems 
to  have  been  the  first  Christian  prince  that  passed  a  statute 
of  mortmain;  and  prevented  by  law  the  clergy  from  making 
new  acquisitions  of  lands,  which  by  the  ecclesiastical  canons 
they  were  forever  prohibited  from  alienating.  The  opposition 
between  his  maxims  with  regard  to  the  nobility  and  to  the 
ecclesiastics  leads  us  to  conjecture  that  it  was  only  by  chance 
he  passed  the  beneficial  statute  of  mortmain,  and  that  his 
sole  object  was  to  maintain  the  number  of  knight's  fees,  and 
to  prevent  the  superiors  from  being  defrauded  of  the  profits 
of  wardships,  marriage,  livery,  and  other  emoluments  arising 
from  the  feudal  tenures.  This  is  indeed  the  reason  assigned 
in  the  statute  itself,  and  appears  to  have  been  his  real  object 
in  enacting  it." 

These  expressions  of  opinion  will  strike  us  with  more  force 
if  we  glance  for  a  moment  at  the  condition  of  Europe  at  the 

184 


THE  LAW  OF  MORTMAIN 


period  to  which  these  writers  refer.  The  Papal  power  was 
then  at  the  zenith  of  its  supremacy,  and  was  constantly  ex- 
tending its  influence  over  all  classes  of  society,  and  every 
circumstance  of  human  life.  In  all  ages  of  the  world,  in 
every  country  of  which  we  have  any  historical  record,  where 
an  organized  priesthood  existed,  the  constant  struggle  of  the 
ecclesiastical  power  has  been  to  claim  and  exercise  a  control 
in  civil  affairs,  and  over  rights,  both  of  property  and  person. 
The  priesthood  of  the  Middle  Ages  certainly  formed  no 
exception  to  this  rule,  and  we  find  their  influence  penetrating 
everywhere.  The  ecclesiastical  courts  maintained  exclusive 
jurisdiction  over  their  own  subjects,  and  the  bishops,  by 
granting  the  tonsure  which  conferred  the  privilege  of  the 
clerical  order,  indiscriminately,  increased  immensely  the 
number  of  persons  exempted  from  the  civil  jurisdiction. 
By  a  further  stretch  of  power,  orphans  and  widows,  the 
stranger  and  the  poor,  the  pilgrim  and  the  leper,  under  the 
appellation  of  persons  in  distress,  came  within  the  peculiar 
cognizance  and  protection  of  the  Church,  as  well  as  the  whole 
body  of  crusaders,  and  those  who  had  merely  taken  a  vow 
to  engage  in  a  crusade. 

These  extensive  claims  and  their  enormous  accretions  of 
real  estate  (for  at  that  time  the  religious  houses  are  supposed 
to  have  owned  at  least  one  fifth  of  the  territory  of  England) 
naturally  awakened  the  jealousy  and  fears  of  the  laity,  and 
the  murmurs  of  discontent  heard  among  the  latter  were 
swelled  by  the  chorus  of  the  priests  who  had  themselves  begun 
to, dread  the  increasing  power  and  exactions  of  the  Court  of 
Rome.  The  Popes  had  assumed,  through  the  machinery  of 

185 


THE  LAW  OF  MORTMAIN 


a  Council,  to  impose  a  general  tax  upon  all  ecclesiastical 
property,  and  the  effect  of  such  proceedings  was  very  natu- 
rally to  produce  a  wide-spread  disaffection  among  the  clergy. 
To  quote  the  author  last  cited,  "pillaged  upon  every  slight 
pretense,  without  law  and  without  redress,  the  clergy  came 
to  regard  their  once  paternal  monarch  as  an  arbitrary  op- 
pressor. All  the  writers  of  the  thirteenth  and  following 
centuries  complain  in  terms  of  unmeasured  indignation,  and 
seem  almost  ready  to  reform  the  general  abuses  of  the 
Church.  They  distinguished,  however,  clearly  enough  be- 
tween the  abuses  which  oppressed  them  and  those  which 
it  was  their  interest  to  retain,  nor  had  the  least  inten- 
tion of  waiving  their  own  immunities  and  authority.  But 
the  laity  came  to  more  universal  conclusions.  A  spirit  of 
inveterate  hatred  grew  up  among  them,  not  only  towards 
the  Papal  tyranny,  but  the  whole  system  of  ecclesiastical 
independence." 

When  this  was  the  prevailing  tone  of  popular  thought  and 
opinion,  we  might  expect  action  looking  towards  a  curtail- 
ment of  ecclesiastical  power,  and  as  land  was  the  main  source 
of  wealth,  and  substantially  the  only  form  of  investment,  as 
well  as  the  most  conspicuous  possession  of  the  clergy,  we 
should  equally  expect  that  the  first  attack  would  be  made  upon 
that  point.  The  fact  that  land  so  held  was  exempted  from 
the  ordinary  burdens  of  the  State  was  at  once  a  reason  and 
an  excuse  for  limiting  its  extent,  and  it  naturally  occurred 
to  reflecting  men  that  if  the  Church  peremptorily  denied  the 
supremacy  of  the  State  over  her  temporal  wealth,  it  was  but 
a  just  measure  of  retaliation,  or  rather  of  self-defense,  that 

186 


THE  LAW  OF  MORTMAIN 


the  State  should  restrain  her  further  acquisitions.  (Hal- 
lam's  Middle  Ages.) 

That  the  researches  of  this  thoughtful  and  philosophical 
writer  had  thoroughly  convinced  him  of  the  existence  of  this 
popular  jealousy  and  distrust  appears  again  in  his  Consti- 
tutional History  of  England  when,  in  speaking  of  the  visita- 
tions of  the  monasteries  by  Cardinal  Woolsey,  he  says:  "The 
enormous  and,  in  a  great  measure,  ill-gotten  opulence  of  the 
regular  clergy  had  long  since  excited  jealousy  in  every  part 
of  Europe.  Though  the  statutes  of  mortmain  under  Ed- 
ward I  and  Edward  III  had  put  some  obstacle  to  its  increase, 
yet  as  these  were  eluded  by  licenses  of  alienation  a  larger 
proportion  of  landed  wealth  was  constantly  accumulating  in 
hands  which  lost  nothing  that  they  had  grasped." 

The  testimony  to  prove  that  these  statutes  were  inspired 
by  and  directed  against  ecclesiastical  corporations  only  is 
further  strengthened  by  a  remark  made  by  Mr.  Buckle  in  his 
History  of  Civilization.  In  discussing  the  proximate  causes 
of  the  French  Revolution  he  observes:  "It  was  in  1749  that 
the  French  Government  took  the  first  decisive  steps  against 
the  Church.  And  what  proves  the  hitherto  backward  state 
of  the  country  in  such  matters  is  that  this  consisted  of  an 
edict  against  mortmain,  a  simple  contrivance  for  weakening 
the  ecclesiastical  power,  which  we  in  England  had  adopted 
long  before." 

We  have  already  seen  that  this  restriction  in  France  applies 
to  ecclesiastical  corporations  only,  and  that  lay  societies  are 
unlimited  in  their  acquisition  and  tenure  of  real  estate. 

These  citations  from  writers,  who  will  certainly  be  con- 
187 


THE  LAW  OF  MORTMAIN 


ceded  to  have  understood  their  subject,  give  us  substantially 
three  reasons  for  the  restriction  of  the  right  of  corporations 
to  hold  lands: 

1st.  That  by  such  tenure  the  land  was  relieved  of  its  feudal 
burdens  and  the  lord's  revenue  diminished. 

2d.  A  jealousy  of  such  tenure  by  corporations  which 
acknowledged  the  supremacy  of  a  foreign  prince  in  political 
as  well  as  religious  matters. 

3d.  A  prejudice  against  such  tenure  by  corporations  which 
made  it  a  matter  of  religious  duty  never  to  alienate  lands 
once  acquired. 

The  mere  statement  of  these  reasons  is  sufficient  to  show 
how  utterly  foreign  they  are  to  the  living  issues,  unless  pos- 
sibly some  may  see  ground  for  apprehension  in  the  last,  and 
fear  that  financial  corporations  would  feel  bound,  equally 
with  the  religious  houses,  to  retain  forever  all  real  estate  once 
acquired.  That  danger  is  probably  of  as  little  real  impor- 
tance as  the  opposite  apprehension  that  once  prevailed  in 
France,  namely,  that  the  operation  of  the  laws  of  inheritance 
compelling  the  equal  division  of  land  among  all  the  children 
of  a  decedent  would  in  time  subdivide  it  into  such  small 
portions  as  to  produce  a  nation  of  paupers.  The  corpora- 
tions could  be  trusted  not  to  depreciate  their  own  property 
by  any  unfair  and  iniquitous  conduct,  and  if  by  any  undue 
acquisition  on  their  part  the  demand  for  land  by  individuals 
should  be  increased,  the  temptation  of  large  profit  would 
soon  produce  its  natural  and  necessary  effect.  No  corpora- 
tion could  possibly  invest  all,  or  even  the  greater  part,  of  its 
funds  in  real  estate,  because  from  the  fluctuations  of  business, 

188 


THE  LAW  OF  MORTMAIN 


with  its  alternate  reverses  and  successes,  it  would  be  com- 
pelled to  hold  a  large  proportion  of  its  funds  in  securities 
readily  convertible  to  meet  emergencies.  The  law  of  supply 
and  demand  would  exert  its  inevitable  influence  over  them 
as  over  individuals,  and  a  large  demand  for  land  on  their 
part  for  investment  would  result  in  raising  prices  as  com- 
pared with  other  securities,  to  such  an  extent  that  investment 
in  the  latter  would  be  the  more  profitable  course,  and  there- 
fore the  one  to  be  adopted. 

History  shows  us  many  instances  of  large  real  estate  trans- 
actions being  carried  on  by  corporations,  not  only  without 
injury,  but  with  positive  benefit  to  the  body  politic.  The 
success  of  the  British  East  India  Company,  and  of  the  Illinois 
Central  and  Pacific  Railroads  in  our  own  country,  afford 
striking  examples  of  the  successful  management  of  immense 
properties  by  corporations,  and  of  the  benefit  which  the  entire 
community  may  derive  from  the  aggregation  of  capital 
possessed  by  an  association  when  used  to  develop  and  im- 
prove real  estate.  From  its  nature  and  the  extent  of  means 
required  to  render  it  valuable  and  productive,  this  class  of 
property  would  seem  to  be  especially  the  one  to  which  joint 
stock  enterprise  might  be  advantageously  devoted.  The  lan- 
guage of  Professor  Bowen  in  his  elaborate  and  able  work  on 
American  Political  Economy  seems  peculiarly  adapted  to 
this  point.  He  says:  "Many  kinds  of  production  can  be 
successfully  kept  up  only  upon  a  large  scale,  for  the  larger 
the  enterprise  the  further  the  division  of  labor  may  be  car- 
ried. In  order  to  keep  such  enterprises  in  motion,  capital 
must  be  aggregated  in  large  masses.  In  England,  the  great 

189 


THE   LAW  OF  MORTMAIN 


inequality  of  the  distribution  of  wealth  allows  such  enter- 
prises to  be  managed  by  individuals;  in  most  cases  a  large 
manufacturing  establishment  is  owned  either  by  one  person, 
or  by  a  firm  which  embraces  but  a  few  partners.  In  the 
United  States,  from  the  comparative  paucity  of  large  private 
fortunes,  such  an  establishment  is  generally  formed  and 
conducted  by  a  joint-stock  company,  which  is  comparatively 
a  modern  invention,  but  one  that,  from  its  democratic  char- 
acter, is  peculiarly  suited  to  this  country  and  to  the  wants  of 
the  age.  Many  small  capitalists  by  clubbing  their  means 
can  successfully  compete  with  men  of  vast  fortune  —  an 
undertaking  which  would  otherwise  be  a  hopeless  one,  as  the 
great  capitalist  can  live  through  reverses  of  trade,  commer- 
cial crises,  and  casualties  which  would  ruin  one  who  had 
little  or  nothing  in  reserve.  So  consonant  are  these  joint- 
stock  companies  to  the  genius  of  our  institutions  and  to  the 
circumstances  of  the  country  that  they  have  multiplied  with 
astonishing  rapidity.  They  have  survived  even  the  neccessity 
which  has  called  them  forth;  for  as  large  private  fortunes 
have  sprung  up  with  the  growth  of  national  opulence,  the 
owners  of  them  have  preferred  to  distribute  their  capital  by 
taking  stock  in  many  of  these  associations  rather  than  to 
concentrate  it  upon  one  undertaking.  The  risk  of  a  sweeping 
calamity  is  thus  materially  diminished.  I  know  of  nothing 
more  irrational  than  the  common  prejudice  against  such 
corporations.  They  are  true  savings  banks  in  which  the 
common  laborer  not  infrequently  invests  his  modest  savings 
and  shares  the  gains  of  his  wealthy  employer,  instead  of  being 
crushed  by  competition  with  him.  It  is  not  unusual  for 

190 


THE  LAW  OF  MORTMAIN 


operatives  to  hold  stock  in  the  very  manufactories  in  which 
they  work  for  wages.  At  any  rate,  the  savings  banks,  to 
which  they  first  confide  the  fruits  of  their  economy,  often 
invest  them  in  such  stock.  These  corporations  allow  per- 
sons of  very  moderate  means  to  participate  in  enterprises 
which  in  other  countries  are  conducted  exclusively  by  the 
rich."  That  among  the  enterprises  which  may  be  so  con- 
ducted, and  most  successfully,  are  real  estate  operations,  is 
shown  by  the  numerous  co-operative  building  associations, 
both  in  England  and  this  country.  These  corporations  hold 
land,  often  in  large  tracts,  on  which  they  erect  stores  and 
dwellings  usually  for  sale  to  their  own  members,  and  have 
enabled  many  persons  of  moderate  means  to  acquire  and 
pay  for  a  home  by  small  instalments,  which  would  otherwise 
have  been  hopelessly  beyond  their  reach. 

The  logic  which  will  allow  one  corporation  to  hold  and 
deal  in  real  estate  as  its  primary  business,  and  forbid  another 
to  purchase  it  for  the  investment  of  its  surplus  funds,  seems 
defective,  and  can  only  be  accounted  for  by  that  principle  of 
selection  which,  according  to  the  old  proverb,  allows  one 
man  to  steal  a  horse  with  impunity,  while  it  hangs  another 
for  looking  over  the  fence. 

Land  in  this  country  gives  its  possessor  no  advantage  or 
power  in  a  political  point  of  view.  In  England,  it  is  still  a 
source  of  both  political  power  and  social  influence,  but  here 
the  owner  of  an  immense  landed  property  possesses  no  ad- 
vantage whatever  over  the  equally  opulent  owner  of  personal 
securities.  Indeed,  the  latter  may  wield  much  greater 
influence  from  the  superior  availability  of  his  resources  which 

191 


THE  LAW  OF  MORTMAIN 


enables  him  to  take  immediate  advantage  of  every  oppor- 
tunity for  profitable  investment.  It  may  easily  be  conceived 
how  in  feudal  times  the  great  landlord  with  his  absolute 
control  of  all  his  tenantry  exerted  immense  power,  and  how 
the  acquisition  of  land  was  the  preliminary  step  to  influence 
and  wealth.  Even  in  later  times,  with  a  restricted  suffrage 
and  uncertain  tenures  by  lessees  and  tenants,  the  power  of 
the  land-owner  remained  great.  But  in  this  country,  where 
the  supply  of  land  is  practically  limitless,  where  the  systems 
of  registration  and  conveyancing  offer  no  bar  to  the  security 
of  tenant  rights  and  the  easy,  inexpensive  transfer  of  titles, 
where  the  poorest  occupant  of  a.  tenement  casts  a  ballot,  as 
well  as  his  landlord,  the  influence  of  the  owner  of  real  estate 
is  no  greater  than  that  of  any  other  capitalist;  and  whether 
his  landlord  be  an  individual  or  a  corporation,  the  tenant  is 
equally  secure  in  his  rights,  and  equally  under  the  protection 
of  the  courts  and  the  laws. 

The  multiplied  forms  of  wealth  in  these  latter  days  have 
had  further  effect  in  diminishing  the  prestige  of  land,  because 
it  is  no  longer  the  main  depository  for  accumulations.  Gov- 
ernment bonds,  and  the  stocks  of  countless  States,  munici- 
palities, and  corporations,  have  taken  its  place,  and  land  is 
now  merely  one  of  numerous  securities  possessing  no  special 
advantages  for  its  owner,  except  such  as  are  inherent  to  its 
character  as  a  form  of  investment. 

Nor  is  it  to  be  apprehended  that  corporations  will  suffer 
land  to  remain  idle  and  unimproved  in  their  hands.  I  of 
course  refer  only  to  civil  or  lay  corporations,  for  ecclesiastical 
ones  have  methods  of  their  own,  which  I  am  not  considering. 

192 


THE   LAW  OF  MORTMAIN 


The  very  condition  of  the  existence  of  a  financial  corporation 
is  a  wise  and  judicious  improvement  of  its  resources,  to 
enable  it  to  obtain  the  largest  possible  return  from  all  its 
investments.  Whether  those  be  made  in  personal  securities 
or  in  real  estate,  the  ruling  motive  of  the  corporation,  its  own 
self-interest,  will  impel  it  to  make  them  in  the  most  profitable 
manner.  If  they  be  in  the  purchase  of  real  estate,  the  law 
of  its  being  will  require  it  to  develop  and  improve  that  estate 
as  rapidly  and  as  advantageously  as  possible,  and  it  is  safe 
to  assume  that  any  corporation  which  fails  to  do  so  will  soon 
give  place  to  its  more  energetic  and  enterprising  rival.  The 
keen  competition  of  our  business  life,  which  incites  corpora- 
tions, no  less  than  individuals,  to  incessant  activity,  is  a 
sufficient  guarantee  against  the  sloth  of  dead  hands  in  the 
present  age. 

There  are  three  considerations  which  seem  to  make  invest- 
ments in  real  estate  peculiarly  advantageous  to  corporations, 
especially  to  such  as  have  to  invest  large  accumulations  of 
assets  through  long  series  of  years,  and  for  which  the  great 
desiderata  are  stability,  permanence,  and  security. 

I.  Stability.  —  In  a  growing  country,  and  one  which  is 
full  of  life  and  energy,  real  estate  must  have  a  constant  and 
advancing  value.  The  growth  of  wealth,  the  increase  of 
business,  create  a  demand  for  dwellings  in  which  that  wealth 
may  be  enjoyed,  and  for  stores  and  warehouses  in  which  that 
business  may  be  transacted.  With  that  progress  comes  also 
a  proportionate  increase  in  the  number  of  mechanics,  artisans, 
merchants,  and  professional  men,  food  consumers  not  food 
producers,  increasing  the  returns  of  the  farmer,  and  adding 

193 


THE  LAW  OF  MORTMAIN 


in  the  same  ratio  to  the  value  of  farming  land.  Real 
estate,  then,  prudently  selected  and  properly  managed,  is 
sure  to  yield  adequate  returns  for  the  investment,  and  to  be 
readily  saleable  when  circumstances  compel  a  realization  of 
assets.  It  cannot  depreciate  rapidly  in  value,  nor,  if  the  cor- 
poration owning  it  be  managed  with  sound  judgment,  need  it 
ever  be  thrown  upon  the  market  in  times  of  depression  and 
general  shrinkage.  When  an  undying  corporation  holds 
lands  by  an  unlimited  tenure,  it  may  disregard  the  temporary 
fluctuations  which  often  affect  real  estate  in  cities  when  the 
quarter  which  has  been  fashionable  for  residence  ceases  to 
be  so,  and  the  advancing  tide  of  business  demand  has  not 
yet  reached  its  stagnant  pools.  The  corporation  can  afford 
to  wait  for  the  reaction  which  is  sure  to  come,  while  the  in- 
dividual often  cannot.  The  persons  sometimes  encountered 
who  have  lost  largely  by  real  estate  investments  are  those 
who  have  become,  to  use  the  common  expression,  land  poor, 
by  having  heedlessly  purchased  so  largely  (and  mainly  of 
unimproved  property)  that  their  income  is  insufficient  to 
meet  the  necessary  charges,  and  they  are  forced  to  sell  at  an 
unfavorable  moment.  A  financial  corporation  of  large  cash 
assets,  available  at  all  times,  is  not  liable  to  such  a  contin- 
gency, and  can  obtain  in  such  investments  the  stability  which 
it  requires. 

II.  Permanence.  —  One  of  the  main  items  of  expense 
incurred  by  a  corporation  in  transacting  a  large  business  is 
caused  by  the  necessity  of  frequently  changing  investments. 
Most  of  our  large  savings  banks  and  insurance  companies 
place  their  assets  mainly  in  bonds  and  mortgages,  and  these 

194 


THE   LAW  OF  MORTMAIN 


are  constantly  shifting,  requiring  the  employment  of  a  large 
clerical  force,  and  much  expenditure  of  care  and  time,  to 
superintend  the  incessant  payment  of  old  loans  and  placing 
of  new  ones.  The  difficulty  is  not  removed  by  the  purchase 
of  Government  or  other  bonds,  for  the  periods  of  time  for 
which  these  usually  run,  from  five  to  twenty  years,  is  but  a 
brief  space  in  the  life  of  an  immortal  corporation,  and  with 
every  change  of  investment,  new  expense  and  greater  or  less 
loss  of  interest  is  necessarily  incurred.  Much  of  this  loss 
would  be  avoided  by  investments  in  real  estate,  as  the  ex- 
pense of  its  management  should  be  but  a  small  percentage 
of  its  returns,  while  the  property  purchased  could  be  held 
permanently,  and  the  corporation  relieved  from  the  neces- 
sity of  making  any  changes,  except  in  unusual  and  excep- 
tional cases.  There  are,  of  course,  instances,  especially  in 
our  large  cities,  where  the  character  of  a  neighborhood  alters 
to  such  an  extent  that  property  there  may  lose  a  portion  of 
its  value  as  already  noted,  but  such  changes  are  rare,  and 
when  they  occur,  so  gradual  and  progressive  in  their  opera- 
tion that  very  ordinary  caution  would  suffice  to  anticipate 
and  guard  against  them. 

III.  Safety.  —  An  additional  consideration  of  great  im- 
portance is  the  almost  absolute  safety  of  investments  of  this 
character.  Figures  may  be  manipulated  and  bonds  may  be 
stolen,  but  stockholders  who  know  that  the  assets  of  the 
company  in  which  they  are  interested  are  mainly  invested 
in  real  estate  can  be  equally  indifferent  to  burglars  without 
and  defaulters  within.  Real  property  cannot  be  stolen  or 
embezzled,  and  the  publicity  attending  any  mortgage  or 

195 


THE  LAW  OF  MORTMAIN 


transfer  of  it  would  prove  a  sufficient  bar  to  any  attempt 
towards  its  improper  conversion. 

This  subject  has  never,  to  my  knowledge,  been  examined 
or  discussed  in  this  country,  in  view  of  our  circumstances  and 
relations,  but  has  been  regulated  by  blind  adherence  to  the 
traditions  of  the  old  world.  "We  have  not  in  this  country 
re-enacted  the  statutes  of  mortmain,"  says  Chancellor  Kent, 
in  his  Commentaries,  "or  generally  assumed  them  to  be  in 
force,  and  the  only  legal  check  to  the  acquisition  of  lands  by 
corporations  consists  in  those  special  restrictions  contained 
in  the  Acts  by  which  they  are  incorporated,  and  which  usually 
confine  the  capacity  to  purchase  real  estate  to  specified  and 
necessary  objects;  and  in  the  force  to  be  given  to  the  excep- 
tion of  corporations  out  of  the  Statute  of  Wills,  which  declares 
that  all  persons  other  than  bodies  politic  and  corporate  may 
be  devisees  of  real  estate. 

"The  statutes  of  mortmain  are  in  force  in  the  State  of 
Pennsylvania.  It  has  been  there  held  and  declared,  by  the 
judges  of  the  Supreme  Court  of  that  State,  that  the  English 
statutes  of  mortmain  have  been  received  and  considered  the 
law  of  that  State,  so  far  as  they  are  applicable  to  their  politi- 
cal conditions;  and  that  they  were  so  far  applicable  that  all 
conveyances  by  deed  or  will  of  lands,  tenements,  or  heredita- 
ments made  to  a  body  corporate,  or  for  the  use  of  a  body 
corporate,  were  void  unless  sanctioned  by  charter  or  act  of 
assembly.  In  the  other  States  it  is  understood  that  the 
statutes  of  mortmain  have  not  been  re-enacted  or  practised 
upon;  and  the  inference  from  the  statutes  creating  corpora- 
tions and  authorizing  them  to  hold  real  estate  to  a  certain 

196 


THE   LAW  OF  MORTMAIN 


limited  extent  is  that  our  statute  corporations  cannot  take 
and  hold  real  estate  for  purposes  foreign  to  their  institution. 
As  we  have  no  general  statutes  of  mortmain,  perhaps  a  legally 
constituted  corporation  in  another  State  can  purchase  and 
hold  lands  ad  libitum  in  New  York,  provided  their  charter 
gave  them  the  competent  power." 

Since  this  was  written  a  decision  of  the  U.  S.  Supreme 
Court  (Paid  vs.  Virginia,  8  Wallace,  168),  which  holds  that  a 
corporation  is  a  creature  of  the  State  in  which  it  was  char- 
tered, and  has  no  rights  in  other  States  but  such  as  may  be 
given  it  by  statute  therein,  seems  to  contradict  the  statement 
of  the  eminent  jurist. 

In  a  footnote  to  the  paragraph  quoted,  the  learned  Chan- 
cellor adds:  "This  is  declared  to  be  the  law  in  Kentucky 
(Lathrop  vs.  Commercial  Bank  of  Sciota,  8  Dana,  114).  The 
decision  in  that  case  goes  to  establish  the  doctrine  that  a 
corporation  of  another  State  or  nation  can  contract  or  sue  on 
contracts  made  by  its  agent  in  Kentucky,  provided  they  be 
such  as  its  charter  authorizes,  and  consistent  with  the  local 
law  and  policy  of  the  State;  and  a  corporation  of  another 
State  can  take  and  hold  lands  by  purchase,  mortgage,  or  de- 
vise when  consistent  with  its  charter,  and  not  denied  by 
positive  law.  This  liberal  and  enlightened  decision  was  fully 
considered  and  ably  sustained." 

From  the  tone  of  this  last  remark,  it  would  seem  that  this 
distinguished  lawyer  himself  saw  no  danger  in  allowing 
corporations  to  hold  real  estate,  and  it  certainly  seems  harsh 
and  unreasonable  that  in  this  State  such  a  privilege  should 
be  denied  to  those  domestic  associations  which  have  done  so 

197 


THE  LAW  OF  MORTMAIN 


much  to  accumulate  capital  within  this  State,  and  added  so 
largely  to  its  wealth  and  prosperity. 

The  experience  of  the  city  of  New  York,  during  the  past 
few  years  (and  I  have  no  doubt  it  could  be  paralleled  else- 
where) shows  the  unfortunate  results  of  the  present  restric- 
tive systems.  While  the  large  corporations  had  millions  of 
dollars  lying  idle  in  banks,  for  which  they  could  find  no  safe 
investment,  the  owners  of  real  estate  were  confronted  with  a 
dead  market,  and  were  in  many  cases  driven  to  forced  sales 
under  the  hammer,  with  their  attendant  loss.  Had  these 
corporations  been  allowed  to  purchase,  they  could  have 
done  so  with  large  profit  to  themselves,  and  at  the  same 
time,  by  relieving  small  holders  and  putting  their  funds 
into  circulation,  have  done  much  to  relieve  the  general  stag- 
nation. 

It  must  be  remembered  that  while  the  statutes  we  have 
been  considering  have  existed  for  more  than  six  hundred 
years,  the  joint  stock  corporations  to  which  they  are  made  to 
apply  were  hardly  in  being  before  the  last  century,  and  have 
only  quite  recently  attained  full  growth.  It  is  an  anachronism 
to  fetter  these  children  of  modern  enterprise  and  energy  in 
the  swaddling  clothes  which  suited  the  decrepit  dwarfs  of 
the  Middle  Ages,  and  to  hamper  the  action  of  co-operative 
undertakings  with  the  shackles  designed  to  prevent  the  selfish 
aggrandizement  of  a  decayed  church.  Whether  it  may  ever 
become  desirable  to  limit  the  accretion  of  corporate  wealth, 
or  to  set  a  bound  to  the  extent  of  corporate  transactions,  or 
not,  there  can  certainly  be  no  good  reason  for  restricting  the 
mode  of  the  investment  of  that  wealth,  or  for  drawing  an 

198 


THE  LAW  OF  MORTMAIN 


arbitrary  distinction,  as  regards  corporations,  between  real 
and  personal  property. 

I  have  treated  the  subject  more  from  a  social  than  a  legal 
point  of  view,  because  it  is  a  social  question  which  must  win 
public  opinion  before  it  can  obtain  legislative  action.  In  the 
belief  that  the  opinions  I  here  express  are  just  and  reasonable 
I  have  put  them  forth,  and  so  believing  I  commend  them  to 
the  candid  consideration  of  thinking  men. 


r 


199 


THE  LAW  OF  LIFE  INSURANCE 

A  COURSE  OF  LECTURES  DELIVERED  BEFORE  THE  LAW 

SCHOOL  OF  THE  UNIVERSITY  OF  THE  CITY  OF  NEW 

YORK  IN  1891,  THE  LECTURER  THEN  BEING  THE 

GENERAL  SOLICITOR  OF  THE  MUTUAL  LIFE 

INSURANCE  COMPANY  OF  NEW  YORK 


THE  LAW  OF  LIFE  INSURANCE 

FIRST  LECTURE 

THE  subject  of  Life  Insurance  law  has  become  one  of 
such  importance  that  I  shall  make  no  apology  and  but 
little  explanation  in  requesting  your  attention  to  the  brief  out- 
line of  it  which  I  propose  to  lay  before  you.  The  Life  Insur- 
ance companies  of  this  country  alone  now  possess  accumulated 
funds  of  more  than  three  quarters  of  a  billion  of  dollars; 
their  policies  in  force  are  more  than  a  million  in  number, 
providing  an  indemnity  of  more  than  three  billions  of  dollars, 
and  their  operations  extend  not  only  all  over  the  United 
States,  but  through  the  greater  part  of  the  civilized  world. 
An  institution  of  such  magnitude,  involving  the  pecuniary 
fortunes  of  so  many  thousands  of  individuals,  is  certainly 
entitled  to  respect,  and  the  increasing  scale  of  its  operations 
makes  the  principles  of  law  by  which  they  are  regulated  a  sub- 
ject of  ever-increasing  importance.  I  shall  not  attempt,  in  the 
time  at  my  disposal,  to  enter  into  the  details  of  the  methods 
of  the  formation  of  companies,  the  limitations  upon  their 
business,  the  character  of  their  investments,  or  the  super- 
vision exercised  by  the  State  authorities,  as  these  are  matters 
which  are  regulated  by  statute  and  differ  in  the  several  States; 
nor  shall  I  attempt  in  my  citations  of  authorities  to  go  often 

203 


THE  LAW  OF  LIFE  INSURANCE 

beyond  the  courts  of  this  State  or  the  Federal  tribunals,  and 
even  then  shall  confine  myself  to  the  mention  of  one  or  two, 
illustrating  each  point,  as  I  propose  rather  to  give  a  general 
view  of  the  entire  subject  than  to  minutely  discuss  any  par- 
ticular question.  Other  States,  as  you  will  find  if  you  pursue 
the  subject,  have  from  time  to  time  passed  laws  —  some  of 
the  most  absurd  and  inequitable  character  —  regulating  the 
terms  on  which  a  contract  of  insurance  may  be  made  by  a 
foreign  company  within  their  limits.  But  whatever  these 
statutes  may  be,  the  companies  concerned  have  no  alterna- 
tive but  to  submit  to  their  requirements,  or  withdraw  from 
the  State  enacting  them.  The  Supreme  Court  of  the  United 
States  some  years  ago  decided,  in  the  case  of  Paid  vs.  the 
State  of  Virginia  (8  Wallace,  168),  that  corporations  are  not 
citizens  within  the  meaning  of  that  clause  of  the  Constitution 
which  declares  that  citizens  of  each  State  shall  be  entitled 
to  all  the  privileges  and  immunities  of  citizens  of  the  several 
States,  nor  do  they  come  within  the  clause  which  declares 
that  Congress  shall  have  power  to  regulate  commerce  with 
foreign  nations  and  among  the  several  States;  that  they  are 
creatures  of  local  law  and  have  not  even  an  absolute  right 
of  recognition  in  other  States,  but  depend  for  that  and  the 
enforcement  of  their  contracts  upon  the  assent  of  those  States, 
which  may  be  given  accordingly  on  such  terms  as  they  please. 
This  doctrine  has  since  been  adhered  to  by  that  court  and 
produced,  in  the  fulness  of  time,  a  somewhat  paradoxical 
result.  The  State  of  Wisconsin  provided  by  statute  that  no 
Fire  Insurance  company  should  transact  business  in  that 
State  unless  it  should  first  appoint  an  attorney  in  the  State 

204 


THE   LAW  OF  LIFE  INSURANCE 

on  whom  processes  of  law  could  be  served,  with  an  agreement 
that  such  company  would  not  remove  the  suit  for  trial  into 
the  United  States  Circuit  Court  or  Federal  Courts.  On  an 
appeal  to  the  Supreme  Court  Mr.  Justice  Hunt  delivered  an 
opinion  holding  that  the  statute  was  repugnant  to  the  Con- 
stitution of  the  United  States  and  the  laws  in  pursuance  there- 
of, and  was  illegal  and  void,  and  further,  that  the  agreement 
of  the  insurance  company  filed  in  pursuance  of  the  act  de- 
rived no  support  from  a  statute  itself  unconstitutional,  and 
was  as  void  as  it  would  be  had  no  such  statute  been  passed. 
The  Judge  says:  "Every  citizen  is  entitled  to  resort  to  all  the 
courts  of  the  country  and  to  invoke  the  protection  which  all 
the  laws  or  all  those  courts  may  afford  him.  A  man  may 
not  barter  away  his  life  or  his  freedom  or  his  substantial 
rights.  In  a  criminal  case  he  cannot,  as  was  held  in  Can- 
cemi's  case  (18  N.  Y.,  128),  be  tried  in  any  other  manner 
than  by  a  jury  of  twelve  men,  although  he  consent  in  open 
court  to  be  tried  by  a  jury  of  eleven  men.  In  a  civil  case  he 
may  submit  his  particular  suit  by  his  own  consent  to  an  arbi- 
tration or  to  the  decision  of  a  single  judge;  so  he  may  omit 
to  exercise  his  right  to  remove  his  suit  to  a  Federal  tribunal 
as  often  as  he  sees  fit,  in  each  recurring  case;  in  these  aspects 
any  citizen  may  no  doubt  waive  the  rights  to  which  he  may 
be  entitled.  He  cannot,  however,  bind  himself  in  advance 
by  an  agreement,  which  may  be  specifically  enforced,  thus 
to  forfeit  his  rights  at  all  times  and  on  all  occasions  when- 
ever the  case  may  be  presented."  (Insurance  Co.  vs.  Morse, 
20  Wallace,  445.)  Relying  upon  this  decision  the  Continental 
Insurance  Company  filed  a  bill  in  the  Circuit  Court  of  the 

205 


THE  LAW  OF  LIFE  INSURANCE 

United  States  for  the  Western  District  of  Wisconsin  setting 
up  the  act  in  question,  that  the  company  had  removed  a  case 
to  a  Federal  Court  in  disregard  of  its  agreement,  and  that  the 
Secretary  of  State  thereupon  threatened  to  revoke  its  license 
to  do  business  in  that  State.  The  company  applied  for  an 
in  junction  restraining  the  Secretary  from  taking  such  action. 
A  decree  was  entered  in  the  Circuit  Court  making  the  injunc- 
tion perpetual,  and  an  appeal  taken  to  the  Supreme  Court. 
(See  Doyle  vs.  Continental  Insurance  Company,  94  U.  S., 
535.)  In  this  case  also  Mr.  Justice  Hunt  delivered  the 
opinion,  which  was  in  effect  that  if  the  State  has  the  power 
to  do  an  act  its  intention  or  the  reason  by  which  it  is  influ- 
enced in  doing  it  cannot  be  inquired  into.  "Thus  the  plead- 
ing before  us  alleges  that  the  permission  of  the  Continental 
Insurance  Company  to  transact  its  business  in  Wisconsin 
is  about  to  be  revoked  for  the  reason  that  it  removed  the 
case  of  Drake  from  the  State  to  the  Federal  Courts.  H 
the  act  of  an  individual  is  within  the  terms  of  the  law,  then 
whatever  may  be  the  reason  which  governs  him,  or  whatever 
may  be  the  result,  it  cannot  be  impeached.  The  acts  of  a 
State  are  subject  to  still  less  inquiry  either  as  to  the  act  itself 
or  as  to  the  reason  for  it.  The  State  of  Wisconsin,  except 
so  far  as  its  connection  with  the  Constitution  and  laws  of  the 
United  States  alters  its  position,  is  a  sovereign  State,  possess- 
ing all  the  powers  of  the  most  absolute  government  in  the 
world.  The  argument  that  the  revocation  in  question  is 
made  for  an  unconstitutional  reason  cannot  be  sustained. 
The  suggestion  confounds  an  act  with  an  emotion  or  a  mental 
proceeding,  which  is  not  the  subject  of  inquiry  in  determining 

206 


THE  LAW  OF  LIFE  INSURANCE 

the  validity  of  a  statute.  An  unconstitutional  reason  or 
intention  is  an  impracticable  suggestion,  and  it  cannot  be 
applied  to  the  affairs  of  life. 

"  If  the  act  done  by  the  State  is  legal  and  is  not  in  violation 
of  the  Constitution  or  laws  of  the  United  States,  it  is  quite 
out  of  the  power  of  any  court  to  inquire  what  was  the  inten- 
tion of  those  who  enacted  the  law."  So,  to  sum  up  the  matter, 
the  case  stands,  as  stated  by  the  learned  Justice:  "The 
effect  of  our  decision  in  this  respect  is  that  the  State  may 
compel  the  insurance  company  to  abstain  from  the  Federal 
Courts  or  to  cease  to  do  business  in  the  State,  which  gives 
the  company  the  option.  It  is  justifiable  because  the  com- 
plainant has  no  constitutional  right  to  do  business  in  that 
State;  that  State  has  authority  at  any  time  to  declare  that 
it  shall  not  transact  business  there.  This  is  the  whole  point 
of  the  case,  and  — without  reference  to  the  injustice  and 
prejudice  or  the  wrong  that  is  alleged  to  exist  —  must  deter- 
mine the  question.  No  right  of  the  complainant  under  the 
laws  of  Constitution  of  the  United  States  by  its  exclusion 
from  the  State  is  infringed,  and  this  is  what  the  State  now 
accomplishes."  In  other  words,  the  companies  have  no 
rights  whatever  outside  of  the  State  which  creates  them,  and 
if  they  wish  to  do  business  in  other  States  must  accept  what- 
ever terms  and  limitations  upon  that  business,  or  the  method 
of  transacting  it,  which  the  State  harboring  them  may  see 
fit  to  impose.  Of  course,  in  saying  they  have  no  rights 
whatever,  I  refer  to  the  right  to  earn'  on  the  business  for 
which  they  were  organized,  and  must  not  be  understood  as 
stating  that  they  could,  for  example,  be  deprived  of  property 

207 


THE  LAW  OF  LIFE  INSUEANCE 

which  they  had  acquired  in  such  States,  with  their  consent, 
by  a  subsequent  change  of  State  policy.  But  by  these  two 
decisions  it  appears  that  while  a  statute  may  be  absolutely 
void,  as  repugnant  to  the  Constitution  and  laws  of  the  United 
States,  the  State  may  proceed  to  enforce  it  as  if  it  were  valid. 

Stated  in  its  simplest  form,  a  contract  of  Life  Insurance 
is  one  in  which  one  party,  called  the  insurer,  in  consideration 
of  the  yearly  payment  of  a  certain  sum  called  the  premium 
by  the  other  party,  known  as  the  insured,  during  his  life, 
agrees  to  pay  a  definite  sum  to  his  representatives  or  nomi- 
nees upon  the  occurrence  of  his  death.  It  will  be  observed, 
as  stated  by  Mr.  Justice  Strong,  in  the  case  of  Insurance 
Company  vs.  Statham  (93  U.  S.,  24),  that  this  is  a  peculiar 
contract.  "Its  obligations  are  unilateral.  It  contains  no 
undertaking  of  the  assured  to  pay  premiums,  but  merely 
gives  him  an  option  to  pay  or  not,  and  thus  to  continue  the 
obligation  of  the  insurers  or  terminate  it  at  his  pleasure.  .  .  . 

"In  my  opinion,  the  true  meaning  of  the  contract  is  that 
the  applicant  for  insurance  by  paying  the  first  premium 
obtains  an  insurance  for  one  year,  together  with  a  right  to 
have  the  insurance  continued  from  year  to  year  during  his 
life  upon  payment  of  the  same  annual  premium,  if  paid  in 
advance."  Thus  the  insured  is  under  no  obligation  to  con- 
tinue his  payments,  and  can  allow  his  policy  to  lapse  at  any 
time,  while  the  insurer  must  fulfil  his  obligation  if  the  pre- 
miums be  regularly  paid.  As  those  allowing  their  policies 
to  lapse  would  naturally  be  the  robust  and  healthy,  who  feel 
no  need  for  insurance,  while  those  of  impaired  health  would 
make  every  effort  to  keep  their  policies  in  force,  there  would 

208 


THE   LAW  OF  LIFE  INSURANCE 

result  a  constant  discrimination  to  the  loss  of  the  insurer  did 
he  not  provide  for  a  total  or  partial  forfeiture  of  the  pre- 
miums already  paid  on  a  failure  to  continue  them,  and  thus 
furnish  the  insured  a  strong  pecuniary  motive  for  maintain- 
ing a  policy  once  obtained.  The  premiums  must  be  calcu- 
lated upon  a  basis  which  will  cover  the  expenses  of  the 
business  as  well  as  the  losses  by  death.  For  this  is  the  one 
thing  certain  to  every  man,  and  every  policy  which  is  kept  in 
force  must  sooner  or  later  be  paid.  To  estimate  properly 
the  amount  necessary  to  cover  the  risk  recourse  must  be  had 
to  the  great  law  of  average.  While  nothing  in  the  future  is 
more  uncertain  than  the  date  of  the  death  of  any  particular 
individual,  few  things  are  more  certain  than  the  average 
number  of  deaths  among  ten  thousand  individuals  at  any 
given  age,  and  with  increased  numbers  this  average  becomes 
almost  a  mathematical  certainty.  It  is  for  this  reason  that 
insurance  is  no  longer  written  to  any  large  extent  by  indi- 
viduals, as  was  formerly  the  case,  but  by  great  corporations 
which,  insuring  many  thousands  of  lives,  can  rely  with  con- 
fidence upon  the  operation  of  this  law. 

It  was  formerly  the  practise  in  England  for  persons  to 
take  out  policies  upon  the  lives  of  others  in  whose  existence 
they  had  no  other  interest,  and  with  whom,  as  in  the  cases  of 
great  generals  and  rulers,  they  had  no  acquaintance,  as  a 
mere  gambling  operation.  This  was  ended  by  a  statute 
passed  in  the  fourteenth  year  of  George  the  Third,  prohibiting 
insurance  upon  lives  except  in  cases  where  the  persons  insur- 
ing shall  have  an  interest  in  the  life  or  death  of  the  persons 
insured,  and  this  has  been  followed  by  the  statute  of  betting 

209 


THE  LAW  OF  LIFE  INSURANCE 

and  gaming  in  this  State,  prohibiting  all  wagers  and  bets 
whose  success  is  made  to  depend  upon  any  unknown  or 
contingent  event,  provided  that  the  statute  shall  not  be  ex- 
tended so  as  to  prohibit  or  in  any  way  effect  any  insurances 
made  in  good  faith  for  the  security  or  indemnity  of  the  party 
insured  and  which  are  not  otherwise  prohibited  by  law  (Re- 
vised Statutes,  8th  Ed.,  p.  2218).  After  the  passage  of  the 
English  act,  it  was  held  by  Lord  Ellenborough,  in  the  case 
of  Godsatt  vs.  Boldero  (9  East,  72),  that  a  policy  of  insurance 
was  a  contract  of  indemnity,  but  this  decision  was  overruled 
on  an  appeal  to  the  Exchequer  Chamber  in  the  case  of  Dolby 
vs.  India  and  London  Life  Ins.  Co.  (28  English  Law  & 
Equity,  312),  where  it  was  held  that  a  life  policy  was  not  in 
its  nature  a  contract  of  indemnity,  but  was  what  it  purports 
to  be  on  its  face,  a  contract  to  pay  a  certain  sum  in  the  event 
of  death,  and  this  doctrine  has  been  adopted  in  this  State, 
in  the  case  of  Rawles  vs.  Ins.  Co.  (27  N.  Y.,  282).  But  to 
make  the  policy  valid  and  not  obnoxious  to  the  statute  just 
referred  to,  it  is  necessary  that  the  beneficiary  should  have 
an  insurable  interest  in  the  life,  and  the  questions  arising 
from  this  necessity  are  numerous  and  perplexing.  Every 
man  is  presumed  to  possess  an  insurable  interest  in  his  own 
life  to  any  amount,  since  by  insuring  it  he  can  protect  his 
estate  from  that  loss  of  future  gains  or  savings  which  might 
be  the  result  of  his  premature  death;  hence,  as  they  cannot  be 
limited,  neither  can  be  the  amount  for  which  he  may  insure; 
so  a  wife  has  an  insurable  interest  in  her  husband's  life  (Baker 
vs.  Insurance  Company,  43  N.  Y.,  282);  a  sister  has  an 
insurable  interest  in  the  life  of  her  brother  (Insurance  Com- 

210 


THE  LAW  OF  LIFE  INSURANCE 

pany  vs.  France,  94  N.  Y.,  561),  or,  to  quote  the  opinion  of 
Mr.  Justice  Field  in  the  case  of  Warnock  vs.  Davis  (104 
U.  S.,  775):  "It  (an  insurable  interest)  may  be  stated  gener- 
ally, however,  to  be  such  an  interest  arising  from  the  rela- 
tions of  the  party  obtaining  the  insurance,  either  as  creditor 
of  or  surety  for  the  assured,  or  from  the  ties  of  blood  or  mar- 
riage to  him,  as  will  justify  a  reasonable  expectation  of  ad- 
advantage  or  benefit  from  the  continuance  of  his  life." 

In  this  State  it  is  well  settled  that  a  policy  which  is  valid 
in  its  inception  continues  to  be  so,  even  if  the  insurable 
interest  of  the  beneficiary  or  assignee  should  subsequently 
cease.  In  the  case  of  Olmstead  vs.  Keyes  (85  N.  Y.,  593), 
Judge  Earl  sums  up  the  matter  as  follows,  after  considering 
the  various  decisions  on  the  subject:  "The  rule,  as  gathered 
from  these  authorities,  is  that  where  one  takes  out  a  policy 
upon  his  own  life  as  an  honest  and  bona  fide  transaction,  and 
the  amount  insured  is  made  payable  to  a  person  having  no 
interest  in  the  life,  or  where  such  a  policy  is  assigned  to  one 
having  no  interest  in  the  life,  the  beneficiary  in  the  one  case 
and  the  assignee  in  the  other  may  hold  and  enforce  the 
policy  if  it  was  valid  in  its  inception,  and  the  policy  was  not 
procured  or  the  assignment  made  as  a  contrivance  to  circum- 
vent the  law  against  betting,  gaming,  and  waging  policies. 
It  follows,  therefore,  that  one  may,  with  the  consent  of  the 
insurer,  deal  with  a  valid  life  policy  as  he  could  with  any 
other  chose  in  action,  selling  it,  assigning  it,  disposing  of  it 
or  bequeathing  it  by  will;  and  it  has  been  well  said  that  if 
he  could  not  do  this  life  policies  would  be  deprived  of  much 
of  their  utility  and  value."  This  doctrine,  however,  has  not 

211 


THE  LAW  OF  LIFE  INSURANCE 

met  with  the  approval  of  the  Supreme  Court  of  the  United 
States.  In  the  case  of  Cammack  vs.  Lewis  (15  Wallace, 
643),  a  policy  of  $3,000  was  taken  out  and  assigned  by  the 
insured  to  secure  a  debt  of  $70,  the  creditor  agreeing  to  pay 
the  premiums.  The  insured  died  several  months  after  the 
policy  was  issued,  and  the  Court  held,  in  view  of  the  dispro- 
portion of  the  real  interest  of  the  creditor  to  the  amount  to 
be  received  by  him,  that  he  could  in  equity  and  good  con- 
science only  hold  the  policy  as  security  for  what  was  owing 
to  him  when  it  was  assigned  and  such  advances  as  he  might 
afterwards  make  on  account  of  it,  and  that  the  assignment 
of  the  policy  to  him  was  only  valid  to  that  extent.  The 
same  doctrine  was  followed  in  the  case  of  Warnock  vs.  Davis 
(supra),  where  the  decisions  of  the  courts  of  this  State  were 
especially  referred  to,  and  in  which  Mr.  Justice  Field,  de- 
livering the  opinion  of  the  Court,  said:  "It  must  be  admitted 
that  they  are  sustained  by  many  other  adjudications.  But 
if  there  be  any  sound  reason  for  holding  a  policy  invalid 
when  taken  out  by  a  party  who  has  no  interest  in  the  life  of 
the  assured,  it  is  difficult  to  see  why  that  reason  is  not  as 
cogent  and  operative  against  a  party  taking  the  assignment 
of  a  policy  upon  the  life  of  a  person  in  which  he  has  no  in- 
terest. The  same  ground  which  invalidates  one  should 
invalidate  the  other,  so  far  at  least  as  to  restrict  the  right 
of  the  assignee  to  the  sums  actually  advanced  by  him.  In 
the  conflict  of  decisions  on  this  subject,  we  are  free  to  follow 
those  which  seem  more  fully  in  accord  with  the  general 
policy  of  the  law  against  speculative  contracts  upon  human 
life,"  and  the  decision  in  Cammack  vs.  Lewis  was  accordingly 

212 


THE  LAW  OF  LIFE  INSURANCE 

followed.  It  is  difficult  to  reconcile  this  language  with  the 
opinion  of  the  same  court  in  the  case  of  Insurance  Company 
vs.  Schafer  (94  U.  S.,  457),  where  a  wife,  holding  a  policy 
upon  the  life  of  her  husband,  had  obtained  an  absolute  divorce 
from  him  and  continued  the  payment  of  the  premiums  on 
the  policy;  the  Court  held  that  the  cessation  of  the  insurable 
interest,  the  policy  having  been  valid  in  its  inception,  did 
not  affect  the  right  of  the  quondam  wife  to  its  proceeds,  and 
in  delivering  the  opinion  of  the  Court,  Mr.  Justice  Bradley, 
a  distinguished  actuary  as  well  as  a  learned  jurist,  remarks: 
"But  supposing  a  fair  and  proper  insurable  interest  of  what- 
ever kind  to  exist  at  the  time  of  taking  out  the  policy,  and 
that  it  be  taken  out  in  good  faith,  the  object  and  purpose  of 
the  rule  which  condemns  wager  policies  is  sufficiently  attained, 
and  there  is,  then,  no  good  reason  why  the  contract  should 
not  be  carried  out  according  to  its  terms,"  and  he  concludes 
by  saying,  "In  our  judgment  a  life  policy  originally  valid 
does  not  cease  to  be  so  by  the  cessation  of  the  assured  party's 
interest  in  the  life  insured."  Under  this  decision,  notwith- 
standing the  cases  of  Cammack  vs.  Lewis,  and  Warnock 
vs.  Davis,  already  cited,  it  would  seem  that  a  man  having 
a  valid  policy  on  his  own  life  might  assign  it  for  a  valuable 
consideration  satisfactory  to  himself,  or  to  secure  a  debt 
previously  contracted  in  good  faith,  and  that  his  assignee 
would  be  entitled  to  collect  and  hold  the  amount  of  the  claim 
when  the  policy  matured,  although  the  consideration  might 
have  been  inadequate  or  the  debt  barred  by  the  statute  of 
limitations.  As  a  matter  of  practise,  where  the  assignment 
of  the  policy  is  absolute  on  its  face  and  the  assignee  claims 

213 


THE  LAW  OF  LIFE  INSURANCE 

the  entire  amount  payable,  no  question  is  raised  by  the  com- 
pany as  to  the  insurable  interest  unless  the  representatives 
of  the  insured  question  the  validity  or  the  extent  of  the  as- 
signment and  make  a  claim  for  all  or  a  portion  of  the  fund. 

A  contract  of  insurance  is  usually  made  by  two  separate 
papers,  the  application  and  the  policy,  which  are  construed 
together  as  one  instrument,  the  policy  being  issued  upon  the 
faith  of  the  statements  made  in  the  application.  The  latter 
contains  all  the  particulars  about  the  individual  applicant 
which  the  insurer  thinks  it  desirable  to  know,  such  as  his 
name,  age,  residence,  occupation,  family  history,  habits  of 
life,  etc.,  together  with  a  series  of  questions  relating  to  his 
physical  condition  to  be  answered  by  the  medical  examiner 
who  is  selected  by  the  company.  This  is  forwarded  to  its 
Home  Office  and  if  approved  a  policy  is  issued,  which  is 
returned  to  the  agent  for  delivery  upon  payment  of  the  first 
premium,  which  gives  it  full  force  and  effect  and  completes 
the  contract.  As  the  only  safety  of  the  insurer  lies  in  his 
having  full  and  correct  answers  to  the  various  questions 
propounded,  so  that  he  can  form  an  accurate  judgment  of 
the  character  of  the  proposed  risk,  the  applicant  is  required 
to  warrant  the  truth  of  his  statements  and  make  the  validity 
of  his  policy  depend  upon  his  accuracy.  As  you  are  aware, 
a  warranty  must  be  absolutely  true  and  no  ignorance  or  good 
faith  can  excuse  or  palliate  an  incorrect  answer.  As  a  matter 
of  fact  any  technical  defense  based  upon  a  false  answer 
to  an  immaterial  question  is  very  rarely  made  unless  some 
good  reason  exist  upon  the  merits  for  declining  payment, 
yet  such  a  defense  is  good  at  law.  In  the  case  of  Jeffreys 

214 


THE  LAW  OF  LIFE  INSURANCE 

vs.  Insurance  Company  (22  Wallace,  47),  the  insured  stated 
in  his  application  that  he  was  unmarried,  when  he  was  actually 
a  married  man,  and  also  that  no  other  application  for  in- 
surance on  his  life  had  been  made,  when  as  a  matter  of  fact 
he  had  before  that  time  applied  to  the  company  defendant 
for  another  policy,  which  had  been  issued.  It  is  only  fair 
to  the  company  to  state  that  the  real  reason  for  declining 
payment  was  that  the  insured  died  of  delirium  tremens  soon 
after  the  policy  was  issued,  but  that  fact  does  not  appear 
in  the  reported  case.  It  was  argued  that  the  insured  pre- 
judiced his  case  by  saying  he  was  unmarried,  since  the  mar- 
ried are  better  risks  than  the  single,  and  therefore  the 
company  was  not  damnified  by  the  untrue  answer.  Deliver- 
ing the  opinion  of  the  Court,  Mr.  Justice  Hunt  says:  "There 
is  no  place  for  the  argument  either  that  the  false  statement 
was  not  material  to  the  risk  or  that  it  was  a  positive  advan- 
tage to  the  company  to  be  deceived  by  it.  It  is  the  distinct 
agreement  of  the  parties  that  the  company  shall  not  be 
deceived  to  its  injury  or  to  its  benefit.  The  right  of  an 
individual  or  a  corporation  to  make  an  unwise  bargain  is  as 
complete  as  that  to  make  a  wise  bargain.  The  right  to 
make  contracts  carries  with  it  the  right  to  determine  what  is 
prudent  and  wise,  what  is  unwise  and  imprudent,  and  upon 
that  point  the  judgment  of  the  individual  is  subject  to  that 
of  no  other  tribunal.  The  case  in  hand  affords  a  good  illus- 
tration of  this  principle.  The  company  deems  it  wise  and 
prudent  that  the  applicant  shall  inform  it  truly  whether  he 
has  made  any  other  application  to  have  his  life  insured.  So 
material  does  it  deem  this  information  that  it  stipulates  that 

215 


THE  LAW  OF  LIFE  INSURANCE 

its  liability  shall  depend  upon  the  truth  of  the  answer.  The 
same  is  true  of  its  inquiry  whether  the  party  is  married  or 
single.  The  Company  fixes  this  estimate  of  its  importance. 
The  applicant  agrees  that  it  is  thus  important  by  accepting 
the  test.  It  would  be  a  violation  of  the  legal  rights  of  the 
Company  to  take  from  it  its  acknowledged  power,  thus  to 
make  its  opinion  the  standard  of  what  is  material,  and  to  leave 
that  point  to  the  determination  of  a  jury.  The  jury  may 
say,  as  the  counsel  here  argue,  that  it  is  immaterial  whether 
the  applicant  answers  truly,  if  he  answers  one  way,  to  wit: 
that  he  is  single  or  that  he  has  not  made  an  application  for 
insurance.  Whether  a  question  is  material  depends  upon 
the  question  itself.  The  information  received  may  be  im- 
material, but  if  under  any  circumstances  it  can  produce  a 
reply  which  will  influence  the  action  of  the  company,  the 
question  cannot  be  deemed  immaterial.  Insurance  com- 
panies sometimes  insist  that  individuals  largely  insured  upon 
their  lives  who  are  embarrassed  in  their  affairs  resort  to  self- 
destruction,  being  willing  to  end  a  wretched  existence  if 
they  can  thereby  bestow  comfort  upon  their  families.  The 
juror  would  be  likely  to  repudiate  such  a  theory  on  the 
ground  that  nothing  can  compensate  a  man  for  the  loss  of 
his  life.  The  jury  may  be  right  and  the  company  may  be 
wrong,  but  the  company  has  expressly  provided  that  their 
judgment  and  not  the  judgment  of  the  juror  shall  govern. 
Their  right  thus  to  contract  and  the  duty  of  the  court  to  give 
effect  to  such  contracts  cannot  be  denied."  But  it  is  seldom 
that  a  direct  falsehood  can  be  shown.  Sometimes  the  answer 
is  literally  true  and  yet  intended  to  convey  a  false  impression, 

216 


THE  LAW  OF  LIFE  INSURANCE 

sometimes  not  responsive,  sometimes  not  sufficiently  definite. 
Cases  of  breach  of  warranty  in  making  answers  frequently 
arise  in  response  to  the  questions  asked  in  reference  to  the 
use  of  spirituous  liquors.  Thus,  in  Van  Valkenburgh  vs. 
Insurance  Company  (70  N.  Y.,  605)  the  question  asked  was 
did  the  applicant  "  use  any  intoxicating  liquors  or  substances  ?" 
It  was  held  that  this  did  not  direct  the  mind  to  a  single  or 
incidental  use,  but  to  a  customary  or  habitual  use,  and  the 
Court  further  held  that  it  was  a  question  not  so  indisputably 
and  clearly  settled  by  the  testimony  as  a  whole  that  the  in- 
sured had  been  addicted  to  such  use  that  he  could  be  plainly 
charged  with  a  fraudulent  intent  in  answering  no,  and  that 
the  question  was,  therefore,  properly  submitted  to  the  jury. 
To  a  similar  effect  is  the  case  of  Insurance  Company  vs. 
Foley  (105  U.  S.,  350).  In  this  the  questions  asked  were 
"Is  the  party  of  temperate  habits?  Has  he  always  been 
so?"  The  answers  given  were,  "Yes,"  and  the  Court, 
through  Mr.  Justice  Field,  says:  "The  question  was  as  to 
the  habits  of  the  insured.  His  occasional  use  of  intoxicating 
liquors  did  not  render  him  a  man  of  intemperate  habits  nor 
would  an  exceptional  case  of  excess  justify  the  application 
of  this  character  to  him.  .  .  . 

"  When  we  speak  of  the  habits  of  a  person  we  refer  to  his 
customary  conduct,  to  pursue  which  he  has  acquired  a  ten- 
dency from  frequent  repetitions  of  the  same  acts.  It  would 
be  incorrect  to  say  that  a  man  has  a  habit  of  anything  from 
a  single  act.  A  habit  of  early  rising,  for  example,  could  not 
be  affirmed  of  one  because  he  was  once  seen  on  the  streets 
in  the  morning  before  the  sun  had  risen;  nor  could  intem- 

217 


THE  LAW  OF  LIFE  INSURANCE 

perate  habits  be  imputed  to  him  because  his  appearance  and 
actions  on  that  occasion  might  indicate  a  night  of  excessive 
indulgence.  The  Court  did  not,  therefore,  err  in  instructing 
the  jury  that  if  the  habits  of  the  insured  'in  the  usual,  ordi- 
nary and  everyday  routine  of  his  life  were  temperate,'  the 
representations  made  are  not  untrue  within  the  meaning  of 
the  policy,  although  he  may  have  had  an  attack  of  delirium 
tremens  from  an  exceptional  over-indulgence.  It  could  not 
have  been  contemplated  from  the  language  used  in  the  policy 
that  it  should  become  void  for  an  occasional  excess  by  the 
insured,  but  only  when  such  excess  had  by  frequent  repeti- 
tions become  a  habit." 

Similar  questions  of  construction  are  likely  to  arise  under 
the  interrogatories  in  reference  to  any  previous  serious  injury 
or  illness,  its  nature,  duration,  etc.  There  is,  perhaps,  no 
trait  of  character  in  which  the  personal  idiosyncrasies  of  indi- 
viduals are  more  marked  than  the  effect  which  a  personal 
injury  or  an  illness  produces  upon  the  mind.  One  man  will 
go  to  the  very  verge  of  the  grave  with  an  attack  of  pneumonia, 
and  on  his  recovery  will  refer  to  it,  if  he  ever  thinks  of  it  at 
all,  as  a  slight  cold.  Another  with  a  mild  attack  of  summer 
complaint,  will  take  to  his  bed  for  days,  and  to  the  end  of  his 
life  relate  with  shuddering  horror  his  narrow  escape  from 
death  by  Asiatic  cholera.  So  when  these  questions  are 
asked  the  answers  will  vary  according  to  the  character  of  the 
applicant.  Should  an  injury  or  illness  be  denied,  and  after- 
wards proved  to  have  occurred,  the  question  as  to  whether  it 
was  serious  or  not  would  be  one  for  the  jury.  This  was  held 
in  Insurance  Company  vs.  Wilkinson  (13  Wallace,  222), 

218 


THE  LAW  OF  LIFE  INSURANCE 

where  the  insured  had  concealed  a  serious  injury  caused  by  a 
fall  from  a  tree,  in  which  Mr.  Justice  Miller  delivered  the 
opinion  of  the  Court.  He  says:  "It  is  insisted  by  counsel  for 
the  defendant  that  if  the  injury  was  considered  serious  at  the 
time,  it  is  one  that  must  be  mentioned  in  reply  to  the  inter- 
rogatory, and  that  whether  any  further  inquiry  is  expedient 
on  the  subject  of  its  permanent  influence  on  the  health  is  for 
the  insurer  to  determine  before  making  insurance.  But 
there  are  grave  and  obvious  difficulties  in  this  construction. 
The  accidents  resulting  in  personal  injuries  which  at  the 
moment  are  considered  by  the  parties  serious  are  so  very 
numerous  that  it  would  be  almost  impossible  for  a  person 
engaged  in  active  life  to  recall  them  at  the  age  of  forty  or  fifty 
years;  and  if  the  failure  to  mention  all  such  injuries  must 
invalidate  the  policy  very  few  would  be  sustained  where 
thorough  inquiry  is  made  into  the  history  of  the  party  whose 
life  is  the  subject  of  insurance.  There  is,  besides,  the  ques- 
tion of  what  is  to  be  considered  a  serious  injury  at  the  time. 
If  the  party  gets  over  the  injury  completely,  without  leaving 
any  ill  consequences,  in  a  few  days,  it  is  clear  that  the  serious 
aspect  of  the  case  was  not  a  true  one.  Is  it  necessary  to  state 
the  injury,  and  explain  the  mistake,  to  meet  the  requirements 
of  the  policy?  On  the  other  hand,  when  the  question  arises, 
as  in  this  case,  on  a  trial,  the  jury,  and  not  the  insurer,  must 
decide  whether  the  injury  was  serious  or  not.  In  deciding 
this  are  they  to  reject  the  evidence  of  the  ultimate  effect  of 
the  injury  on  the  party's  health,  longevity,  strength,  and  other 
similar  considerations  ?  This  would  be  to  leave  out  of  view 
the  essential  purpose  of  the  inquiry  and  the  very  matters 

219 


THE  LAW  OF  LIFE  INSURANCE 

which  would  throw  most  light  on  the  nature  of  the  injury 
with  reference  to  its  influence  on  the  insurable  character  of 
the  life  proposed." 

It  seems  to  follow,  in  the  opinion  of  the  learned  jurist, 
that  the  question  is  properly  answered  if  the  applicant  for 
insurance  ignores  any  trivial  injury  or  slight  illness  to  which 
he  may  have  been  subjected,  and  which  has  had  no  lasting 
or  important  effect  upon  his  physical  condition,  and  this  is, 
in  my  opinion,  good  law  as  well  as  good  sense.  It  cannot  be 
expected  or  required  that  the  man  in  middle  life,  at  which 
time  most  insurance  is  taken,  should  recall  and  recite  every 
sprain  or  bruise,  every  cold  or  colic  which  he  has  ever  expe- 
rienced, but  only  that  he  should,  uberrimd  fide,  put  down  the 
serious  and  important  accidents  and  diseases  which  have  left 
permanent  traces  or  effected  permanent  results  on  his  physical 
organs  or  his  general  health. 

This  position  has  been  sustained  by  the  Court  of  Appeals, 
in  the  case  of  Cushman  vs.  Insurance  Company  (70  N.  Y., 
72).  There  the  applicant  was  asked  inter  alia  if  he  had 
ever  had  disease  of  the  liver,  and  answered  no.  It  appeared 
that  he  had  for  a  few  days  been  attended  by  a  physician  for 
what  the  latter  considered  congestion  of  the  liver.  Mr.  Jus- 
tice Earl,  in  delivering  the  opinion  of  the  Court,  says:  "Tak- 
ing into  consideration  the  symptoms  of  the  sickness,  the 
degree  of  skill  and  the  extent  of  the  examination  of  the  doctor, 
the  very  slight  nature  of  the  sickness  and  the  speedy  and 
complete  recovery,  and  all  the  other  circumstances,  it  was 
for  the  jury  to  determine  whether,  prior  to  the  insurance, 
the  insured  had  had  congestion  of  the  liver.  But  even  if  he 

220 


THE   LAW   OF  LIFE  INSURANCE 

had  had  such  congestion,  it  does  not  follow  that,  within  the 
meaning  of  the  policy,  he  had  had  a  disease  of  the  liver.  In 
construing  contracts  words  must  have  the  sense  in  which  the 
parties  used  them,  and  to  understand  them  as  the  parties 
understood  them,  the  nature  of  the  contract,  the  objects  to  be 
attained,  and  all  the  circumstances  must  be  considered.  By 
the  questions  inserted  in  the  application  the  defendant  was 
seeking  for  information  bearing  upon  the  risk  which  it  was  to 
take  —  the  probable  duration  of  the  life  to  be  insured.  It 
was  not  seeking  for  information  as  to  merely  temporary'  dis- 
orders, or  functional  disturbances,  having  no  bearing  upon 
the  general  health  or  continuance  of  life.  Colds  are  generally 
accompanied  with  more  or  less  congestion  of  the  lungs,  and 
in  such  a  case  there  is  no  disease  of  the  lungs  which  an  appli- 
cant for  insurance  would  be  bound  to  state.  So  most,  if  not 
all,  persons  will  have  at  times  congestion  of  the  liver,  causing 
slight  functional  derangements  and  temporary  illness,  and 
yet  in  the  contemplation  of  parties  entering  into  contracts  of 
Life  Insurance,  and  having  regard  to  general  health  and  the 
continuance  of  life,  it  may  be  safely  said  that  in  such  cases 
there  is  no  disease  of  the  liver. 

"  In  construing  a  policy  of  Life  Insurance,  it  must  be  gen- 
erally true  that  before  any  temporary  ailment  can  be  called 
a  disease  it  must  be  such  as  to  indicate  a  vice  in  the  consti- 
tution, or  to  be  so  serious  as  to  have  some  bearing  upon  the 
general  health  and  the  continuance  of  the  life,  or  such  as 
according  to  common  understanding  would  be  called  a  dis- 
ease; and  such  has  been  the  opinion  of  the  best  writers  and 
judges.  Hence,  whether  the  insured  had  congestion  of  the 

221 


THE  LAW  OF  LIFE  INSURANCE 

liver,  and  whether  the  congestion  was  of  such  a  character  as 
to  constitute  a  disease  of  the  liver,  within  the  meaning  of 
the  policy,  were  both  questions  properly  submitted  to  the 
jury  and  their  determination  thereon  is  conclusive.  The 
assured  also  answered,  'no'  to  the  question  in  the  application 
whether  'he  had  had  any  serious  disease.'  It  can  hardly  be 
claimed  that  there  was  any  evidence  showing  this  answer  to 
have  been  untrue.  But  whether  it  was  true  or  not,  for  reasons 
above  stated,  it  was  at  least  a  question  of  fact  upon  all  the 
evidence  for  the  jury."  An  answer  given  by  the  insured 
not  responsive  in  terms  to  the  interrogatory,  and  not  profess- 
ing to  give  the  information  desired,  is  presented  in  the  case 
of  Higgins  vs.  Insurance  Company  (74  N.  Y.,  p.  6),  which 
shows  that  a  defense  based  upon  a  breach  of  warranty  cannot 
be  sustained  unless  a  distinct  and  unequivocal  assertion  is 
made  which  proves  to  be  in  fact  untrue.  In  this  case  the 
interrogatory  was  "  Name  and  residence  of  the  family  physi- 
cian of  the  party,  or  of  one  whom  the  party  has  usually 
employed?"  Answer:  "Refer  to  Dr.  A.  T.  Mills,  Corning, 
N.  Y."  Judge  Allen,  delivering  the  opinion  of  the  Court, 
says:  "The  language  of  the  answer  is  equivocal;  it  neither 
declares  Dr.  Mills  to  have  been  or  to  be  the  family  physician 
of  the  applicant,  or  that  he  was  the  physician  whom  he  had 
usually  employed  or  consulted,  or,  if  he  occupied  either 
relation,  which  it  was. 

"It  was  only  upon  the  ground  that  the  statement  con- 
stitutes an  express  warranty  and  was  untrue  in  fact,  that  the 
defense  can  be  sustained.  The  answer  is  not  responsive 
in  terms  to  the  interrogatory  and  does  not  profess  to  give 

222 


THE  LAW  OF  LIFE  INSURANCE 

the  information  asked.  If  the  answer  given  was  not  satis- 
factory to  the  defendant,  a  fuller  and  more  explicit  answer 
should  have  been  required.  A  breach  of  warranty  as  upon 
the  affirmance  of  an  untruth  cannot  be  alleged  in  respect 
of  any  answer  which  does  not  profess  to  state  any  fact.  The 
words  of  the  answer  cannot  be  extended  by  implication  in 
aid  of  a  defense  founded  upon  a  technical  breach  of  war- 
ranty beyond  the  fair  import  of  its  language  and  the  intent 
of  the  party  as  indicated  by  its  terms.  It  is  always  in  the 
power  of  the  insurer  to  have  an  explicit  and  clear  affirmation 
as  to  every  fact  material  to  the  risk,  and  if  answers  to  the 
interrogatories  are  not  full  and  do  not  give  the  information 
called  for  they  cannot  be  treated  as  affirmations  of  facts 
not  stated,  although  called  for  by  the  interrogatories." 

The  numerous  restrictions  formerly  contained  in  the 
policies  issued  by  the  great  insurance  companies  of  this 
country  have  one  by  one  been  abandoned,  and  the  policy 
itself  is  now  usually  a  simple  promise  to  pay  the  amount  of 
money  called  for  at  maturity,  provided  the  premiums  be 
promptly  paid  when  due.  The  application  contains  the 
restrictions  imposed,  and  these  are  generally  limited  to  pro- 
hibiting certain  hazardous  employments,  residence  in  the 
tropics  or  death  by  the  voluntary  act  of  the  insured  within 
two  years  from  the  date  of  the  policy.  I  do  not  think  it 
necessary  to  take  up  your  time  by  going  over  the  decisions 
upon  the  restrictive  clauses  as  they  formerly  existed,  partly 
because  the  policies  containing  them  are  rapidly  passing  out 
of  existence,  by  death  or  maturity,  and  partly  because  most 
of  the  large  companies  grant  to  their  old  policy-holders  the 

223 


THE  LAW  OF  LIFE  INSURANCE 

advantages  of  the  new  form  upon  request.  A  question 
which  has  been  a  subject  of  much  discussion  in  the  courts 
is  what  degree  of  insanity  will  excuse  a  man  who  commits 
suicide,  or  rather  at  what  stage  of  mental  impairment  does 
his  act  cease  to  be  voluntary.  One  of  the  earliest  decisions 
upon  this  subject  is  the  case  of  Breasted  and  others,  Admin- 
istrators, etc.,  vs.  The  Farmers'  Loan  and  Trust  Company, 
reported  in  8  N.  Y.,  299.  Mr.  Justice  Willard,  in  delivering 
the  opinion  of  the  Court,  says :  "  It  was  not  contended  on  the 
part  of  the  defendant  that  the  policy  would  be  avoided  by 
a  mere  accidental  destruction  of  life  by  the  party  himself. 
It  was  urged  that  it  would  be  if  the  act  was  done  intention- 
ally, although  under  circumstances  which  would  exempt 
the  party  from  all  moral  culpability.  It  was  insisted  that 
the  expression  must  be  taken  to  mean  a  death  by  his  own 
act.  It  seems  to  me  that  this  is  a  yielding  of  the  whole  ques- 
tion. An  insane  man  incapable  of  discerning  between 
right  and  wrong  can  form  no  intention.  His  acts  are  not 
the  result  of  thought  or  reason,  and  no  more  the  subject 
of  punishment  than  those  which  are  produced  by  accident. 
The  acts  of  a  madman,  which  are  the  offspring  of  the  disease, 
subject  him  to  no  criminal  responsibility.  If  the  insured, 
while  engaged  in  his  trade  as  a  house  joiner,  had  accidentally 
fallen  through  an  opening  in  the  chamber  of  the  house  he 
was  constructing,  and  lost  his  life,  the  argument  concedes 
that  the  insurer  would  be  liable.  The  reason  is  that  the 
mind  did  not  concur  with  the  act.  How  can  this  differ 
in  principle  from  a  death  in  a  fit  of  insanity,  when  the  party 
had  no  mind  to  concur  in  or  oppose  the  act  ?  It  must  occur 

224 


THE  LAW  OF  LIFE  INSURANCE 

to  every  prudent  man  seeking  to  make  provision  for  his 
family  by  an  insurance  on  his  life  that  insanity  is  one  of 
the  diseases  which  may  terminate  his  being.  It  is  said  the 
defendants  did  not  insure  the  continuance  of  the  intestate's 
reason.  Nor  did  they  in  terms  insure  him  against  small-pox 
or  scarlet  fever,  but  had  he  died  of  either  disease  no  doubt 
the  defendant  would  have  been  liable.  They  insure  the 
continuance  of  his  life.  What  difference  can  it  make  to  them 
or  to  him  whether  that  life  is  terminated  by  the  ordinary 
course  of  a  disease  in  his  bed  or  whether  in  a  fit  of  delirium 
he  ends  it  himself.  In  each  case  the  death  is  occasioned  by 
means  within  the  meaning  of  the  policy,  if  the  exception 
contemplates,  as  I  think  it  does,  the  destruction  of  life  by 
the  intestate  while  a  rational  agent  responsible  for  his  acts." 
The  learned  Judge  goes  on  to  say:  "At  the  time  this  case 
was  decided  by  the  Supreme  Court  on  the  demurrer  there 
had  been  no  case  either  in  this  country  or  in  England  in 
which  the  same  question  had  arisen.  The  case  of  Borra- 
dale  vs.  Hunter  (5  Man.  &  Gr.,  639),  decided  by  the  English 
Common  Pleas  in  1843,  has  since  been  reported.  That 
action  was  brought  by  the  executor  of  the  insured  upon  a 
life  policy  containing  a  proviso  that  in  case  the  assured  should 
die  by  his  own  hands  or  by  the  hands  of  justice  or  in  conse- 
quence of  a  duel  the  policy  should  be  void.  The  insured 
threw  himself  into  the  Thames  and  was  drowned.  Upon  an 
issue  whether  the  assured  died  by  his  own  hands,  the  jury 
found  that  he  voluntarily  threw  himself  into  the  water,  know- 
ing at  the  time  that  he  should  thereby  destroy  his  life  and 
intending  thereby  to  do  so;  but  at  the  time  of  committing 

225 


THE  LAW  OF  LIFE  INSURANCE 

the  act  he  was  not  capable  of  judging  between  right  and 
wrong.  In  was  held  by  a  majority  of  the  court,  Chief  Jus- 
tice Tindal  dissenting,  that  the  policy  was  avoided,  as  the 
proviso  included  all  acts  of  voluntary  self-destruction  and 
was  not  limited  by  the  accompanying  provisos  to  acts  of 
felonious  sucide.  The  three  Judges  who  formed  the  majority 
laid  the  main  stress  upon  the  fact  that  the  jury  found  the 
act  of  self-destruction  to  be  voluntary,  that  he  knew  when 
he  threw  himself  into  the  river  he  should  thereby  destroy 
his  life,  and  that  he  intended  thereby  to  do  so.  The  referees 
in  the  present  case  have  not  found  that  the  intestate  acted 
voluntarily  or  that  he  knew  the  consequences  of  his  act. 
They  merely  find  that  while  insane,  for  the  purpose  of  drown- 
ing himself,  he  threw  himself  into  the  river,  not  being  men- 
tally capable  of  distinguishing  between  right  and  wrong. 
If  Borradale  vs.  Hunter  were  an  authority  which  we  ought 
to  follow,  it  differs  so  much  from  the  case  before  us  that  we 
are  at  liberty  to  decide  it  upon  principle. 

"Afterwards  the  case  of  Schwabe  vs.  Clift  was  tried  at  Nisi 
Prius,  before  Cresswell,  J.  It  was  upon  a  policy  upon  the 
life  of  the  plaintiff's  intestate,  containing  a  proviso  that  if 
the  assured  should  commit  suicide  or  die  by  dueling,  or  by 
the  hands  of  justice,  the  policy  should  be  void.  The  assured 
died  from  the  effects  of  sulphuric  acid  taken  by  himself,  but 
evidence  was  given  tending  to  show  that  at  the  time  he  took 
the  sulphuric  acid  he  was  in  part  of  unsound  mind.  In  his 
charge  to  the  jury  the  learned  Judge  said  that  to  bring  the 
case  within  the  exception  it  must  be  made  to  appear  that  the 
deceased  died  by  his  own  voluntary  act;  that  at  the  time 

226 


THE  LAW  OF  LIFE  INSURANCE 

he  committed  that  act  he  could  distinguish  between  right 
and  wrong,  so  as  to  be  able  to  understand  and  appreciate 
the  nature  and  quality  of  the  act  he  was  doing,  and  that, 
therefore,  he  was  at  that  time  a  responsible  being  (2  Car 
&  Kerwin,  134).  This  case  was  afterwards  brought  into 
the  Court  of  Exchequer  Chamber  on  bill  of  exceptions, 
found  in  3  Man.  &  Gr.  437  by  the  title  of  Clift  vs.  Schwabe. 
That  Court,  by  a  vote  of  four  to  two,  ordered  a  new  trial, 
holding  that  the  direction  was  erroneous:  for  that  the  terms 
of  the  policy  included  all  acts  of  voluntary  self-destruction, 
and,  therefore,  if  A  voluntarily  killed  himself,  it  was  imma- 
terial whether  he  was  or  was  not  at  the  time  a  responsible 
moral  agent. 

"This  case  is  open  to  the  same  remark  as  Borradale  vs. 
Hunter,  supra.  It  turned  upon  the  assumed  fact  that  the 
act  of  the  suicide  was  voluntary,  a  fact  not  found  by  the 
referee  in  this  case."  This  reasoning  prevailed  with  a  ma- 
jority of  the  Court  and  was  adopted  as  their  opinion  by  a  vote 
of  five  to  three.  But  in  the  case  of  Van  Zandt  vs.  Insurance 
Company,  reported  in  55  N.  Y.,  139,  where  the  policy  con- 
tained the  condition  that  in  case  the  assured  should  die 
by  his  own  hand  it  should  be  void,  the  Court,  per  Mr.  Justice 
Rapallo,  returned  to  the  rule  established  by  the  English 
cases  and  questioned  the  soundness  of  the  doctrine  laid 
down  by  Judge  Willard.  Judge  Rapallo  says:  "A  finding, 
in  the  language  of  the  request  in  the  present  case,  that  the 
deceased  had  sufficient  power  of  mind  and  reason  to  under- 
stand the  physical  nature  and  consequences  of  the  act, 
and  that  he  committed  it  voluntarily  and  wilfully  and  in 

227 


THE  LAW  OF  LIFE  INSURANCE 

pursuance  of  the  purpose  and  intention  thereby  to  cause 
his  own  death,  would  have  established  that  insanity  did  not 
exist  to  such  a  degree  as  to  prevent  him  from  forming  an 
intention,  or  being  conscious  of  the  act  he  was  doing.  It 
would  have  established  that  his  mind  did  concur  with  the 
act,  and  that  this,  being  voluntary,  was  not  the  result  of  any 
insane  impulse  or  want  of  power  of  self-control.  Whether 
so  much  power  of  reasoning  and  self-control  could  be  left  in 
a  mind  so  impaired  as  to  be  incapable  of  appreciating  the 
moral  obliquity  of  the  crime  of  suicide  is  rather  a  scientific 
than  a  legal  question.  Judge  Willard,  in  the  Breasted  case, 
expresses  the  opinion  that  a  man  so  insane  as  to  be  incapable 
of  discerning  between  right  and  wrong  can  form  no  intention. 
This,  it  must  be  observed  in  passing,  is  a  much  broader 
proposition  than  that  the  failure  to  appreciate  the  wrong  of 
a  particular  act  evinces  a  total  deprivation  of  reason.  The 
loss  of  moral  sense  even  to  that  extent  in  one  who  had  pre- 
viously possessed  it  would  undoubtedly  be  a  fact  bearing 
strongly  upon  the  question  whether  he  retained  his  other 
faculties.  But  in  the  practical  administration  of  justice,  in 
cases  of  this  description,  it  seems  to  us  a  dangerous  doctrine 
to  hold  that  the  attention  of  the  jury  should  be  directed  prin- 
cipally to  the  degree  of  appreciation  which  the  deceased  had 
of  the  moral  nature  of  his  act,  and  that  this  question,  most 
speculative  and  difficult  of  solution,  should  be  made  the  test 
by  which  it  should  be  determined  whether  he  had  knowingly 
and  voluntarily  violated  the  condition  of  his  insurance.  The 
real  question  is,  whether  he  did  the  act  consciously  and  vol- 
untarily, or  whether,  from  disease,  his  mind  had  ceased  to 

228 


THE  LAW  OF  LIFE  INSURANCE 

control  his  actions.  Supposing  a  man  to  be  in  possession 
of  his  will  and  of  the  ordinary  mental  faculties  necessary 
for  self-preservation,  but  that  his  mind  had  become  so  mor- 
bidly diseased  on  the  subject  of  suicide  that  he  cannot  appre- 
ciate its  moral  wrong,  and  in  this  condition  of  mind  he  takes 
his  own  life  voluntarily  and  intentionally  —  perhaps  with  the 
very  object  of  securing  to  his  family  the  benefits  of  an  insur- 
ance upon  his  life  —  it  is  difficult  to  say  that  it  is  not  a  death 
by  his  own  act  within  the  meaning  of  the  policy.  It  has  been 
doubted  whether  public  policy  would  permit  an  insurance 
covering  a  case  of  intentional  suicide  by  the  insured  while 
sane,  but  however  this  may  be,  no  rational  doubt  can  be 
entertained  that  a  condition  exempting  the  insurers  from 
liability  in  case  of  the  death  of  the  insured  by  his  own  hand, 
whether  sane  or  insane,  would  be  valid  if  mutually  agreed 
upon  between  the  insured  and  the  insurer.  When  nothing 
is  said  in  the  policy  with  respect  to  insanity,  the  words, 
'die  by  his  own  hand,'  in  their  literal  sense  comprehend 
all  cases  of  self-destruction.  The  exceptions  which  have 
been  engrafted  upon  these  words  by  judicial  decisions  must 
rest  upon  the  ground  that  the  excepted  cases  could  not  have 
been  within  the  meaning  of  the  parties  to  the  policy.  The 
intent  on  the  part  of  the  insurer  in  inserting  the  condition  is 
evident.  The  policy  creates  to  the  assured  a  pecuniary 
interest  in  his  own  death.  To  a  man  laboring  under  a  pressure 
of  poverty,  and  the  urgent  wants  of  a  dependent  family,  or 
of  inability  to  discharge  sacred  pecuniary  obligations,  or 
other  similar  causes,  the  policy  offers  a  temptation  to  self- 
destruction.  To  protect  the  insurers  against  the  increase  of 

229 


THE  LAW  OF  LIFE  INSURANCE 

risk  arising  out  of  this  temptation  is  the  object  for  which  the 
condition  in  question  is  inserted.  The  condition,  therefore, 
is  to  be  so  construed  as  to  exclude  only  those  cases  in  which 
these  motives  could  not  have  operated  —  such  as  accident  or 
delirium.  So  far  as  considerations  of  public  policy  have  any 
place  in  determining  such  a  question  they  are  undoubtedly 
in  favor  of  confining  the  exceptions  to  the  condition  to  cases 
in  which  the  self-destruction  is  clearly  shown  to  have  been 
accidental  or  involuntary.  I  do  not  find  that  any  of  the  cases 
have  gone  so  far  as  to  adjudicate  that  the  mere  want  of 
capacity  to  appreciate  the  moral  wrong  involved  in  the  act, 
where  it  was  voluntary  and  intentional  or  unaccompanied 
by  any  want  of  appreciation  of  its  physical  nature  and 
consequences,  or  by  any  insane  impulse  or  want  of  power  of 
will  or  self-control,  is  sufficient  to  take  the  case  out  of  the 
proviso." 

Among  the  authorities  relied  upon  on  the  argument  of 
this  case  was  Terry  vs.  Insurance  Company  (15  Wallace, 
580),  in  which  the  then  existing  authorities  on  this  subject 
are  elaborately  considered  and  discussed  by  Mr.  Justice 
Hunt.  He  holds  the  rule  to  be  that  "if  the  assured,  being  in 
the  possession  of  his  ordinary  reasoning  faculties,  from  anger, 
pride,  jealousy,  or  a  desire  to  escape  from  the  ills  of  life, 
intentionally  takes  his  own  life,  the  proviso  attaches,  and 
there  can  be  no  recovery.  If  the  death  is  caused  by  the 
voluntary  act  of  the  assured,  he  knowing  and  intending  that 
his  death  shall  be  the  result  of  his  act,  but  when  his  reasoning 
faculties  are  so  far  impaired  that  he  is  not  able  to  understand 
the  moral  character,  the  general  nature,  consequences,  and 

230 


THE  LAW  OF  LIFE  INSURANCE 

effect  of  the  act  he  is  about  to  commit,  or  when  he  is  impelled 
thereto  by  an  insane  impulse  which  he  ha^  not  the  power 
to  resist,  such  death  is  not  within  the  contemplation  of  the 
parties  to  the  contract,  and  the  insurer  is  liable." 

Commenting  upon  this  decision,  Judge  Rapallo  says: 
"The  opinion  contains  some  general  language  which  goes 
far  beyond  the  charge  in  the  Circuit  Court  and  was  not 
necessary  to  sustain  the  judgment.  I  refer  to  that  part  of 
the  opinion  which  is  relied  upon  in  the  points  of  the  respon- 
dent in  this  case,  and  in  which  the  learned  Judge  says  (citing 
the  language  I  have  just  quoted) : 

"The  precise  effect  of  this  passage  is  not  very  clear  to  us, 
as  it  includes  several  conditions  which  can  hardly  co-exist. 
It  can  be  conceived  that  the  act  might  have  been  voluntary, 
and  the  self-destruction  intentional,  though  the  assured 
failed  to  appreciate  its  moral  character;  but  it  is  difficult  to 
conceive  how  the  act  could  have  been  voluntary  and  inten- 
tional when  the  faculties  of  the  deceased  were  so  far  impaired 
that  he  was  not  able  to  understand  'the  general  nature,  con- 
sequences and  effect  of  the  act  he  was  about  to  commit,'  or 
when  he  was  impelled  thereto  by  an  insane  impulse  which 
he  had  not  the  power  to  resist. 

"Even  if  the  decision  in  the  Terry  case  were  an  authority 
binding  upon  us,  we  should  not  regard  it  as  overruling  the 
case  of  Borradale  vs.  Hunter  and  kindred  cases." 

Acting  upon  the  suggestion  made  by  Judge  Rapallo  in  the 
Van  Zandt  case,  the  companies  inserted  in  their  policies  after 
the  words,  "if  the  insured  shall  die  by  his  own  hand,"  the 
clause,  "sane  or  insane,"  and  this  came  up  for  consideration 

231 


THE  LAW  OF  LIFE  INSURANCE 

in  the  case  of  De  Gogorza  vs.  Insurance  Company  (65 
N.  Y.,  232),  argued  before  the  Commissioners  of  Appeals  in 
May,  1875.  The  opinion  was  delivered  by  Commissioner 
Reynolds,  who,  after  discussing  the  various  cases  on  the 
subject,  goes  on  to  say:  "So  far,  therefore,  as  we  can  be 
aided  by  judicial  decisions,  they  appear  favorable  to  views 
which  are  commended  to  our  judgment.  We  do  not,  how- 
ever, place  reliance  upon  them  further  than  they  appear  to 
be  fortified  by  reason.  We  prefer  to  place  our  decision  upon 
the  ground  that  the  words  of  the  proviso  in  the  policy  before 
us,  by  plain  rules  of  interpretation,  exempt  the  defendant 
from  liability.  That  this  language,  in  view  of  previous 
decisions,  was  inserted  for  such  a  purpose  cannot  be  doubted, 
and  that  it  was  agreed  to  by  both  the  insured  and  the  insurer 
is  not  questioned,  and  that  it  is  a  provision  allowed  by  law 
no  one  denies.  We  are  to  say  from  these  words  what  the 
parties  must  have  intended,  and  we  cannot  properly  say 
that  additional  words  having  no  meaning  were  inserted  in 
the  contract:  and  if  they  mean  anything  it  is  just  what  the 
words  commonly  import,  and  that  is,  if  death  ensues  from 
any  physical  movement  of  the  hand  or  body  of  the  assured 
proceeding  from  a  partial  or  total  eclipse  of  the  mind,  the 
insurer  may  go  free.  We  are  not  altogether  unmindful  of 
the  force  of  the  proposition  that  a  man  does  not  die  by  his 
own  hand  who  has  not  sufficient  mind  to  will  his  own  death, 
and  it  is  not,  perhaps,  entirely  easy  to  see  in  what  precise 
words  in  our  language  the  idea  may  be  accurately  and  artis- 
tically expressed  that  a  totally  insane  man  may  take  his  own 
life.  But  the  question  seems  to  involve  more  the  refinement 

232 


THE  LAW  OF  LIFE  INSURANCE 

of  language  than  the  application  of  practical  sense,  and 
we  are  of  the  opinion  that  in  the  common  judgment  of 
mankind  it  will  be  considered  that  when  a  totally  insane  man 
blows  his  brains  out  with  a  pistol,  he  will  be  said  to  have 
died  by  his  own  hand  within  the  meaning  of  a  policy  such 
as  we  have  now  under  consideration."  This  clause,  having 
thus  been  sustained,  and  never  successfully  questioned  in 
any  other  court,  is  a  protection  to  the  insurer  against  death 
by  suicide,  but  where  the  words  "sane  or  insane"  are  omitted 
it  is  practically  impossible  to  establish  to  the  satisfaction 
of  a  jury  that  the  self-destruction  was  deliberate  and  inten- 
tional. The  rule  in  the  Terry  case  has  now  been  substan- 
tially adopted  in  this  State  in  the  case  of  Newton  vs.  Insurance 
Company  (76  N.  Y.,  429),  and  under  that  rule  the  question 
of  the  insanity  of  the  insured  is  always  one  which  must 
go  to  the  jury.  The  insurer  is  liable  if  the  insured,  when 
he  took  his  life,  was  carried  away  by  an  insane  impulse 
which  he  could  not  resist,  and  the  jury  are  apt  to  argue 
that  the  fact  that  he  did  not  resist  the  impulse  proves  at 
once  that  it  was  an  insane  one  and  that  it  was  irresistible. 
Whether  a  warranty  that  the  insured  will  not  die  by  his  own 
voluntary  act  will  require  a  broader  construction  of  the 
language  used,  and  relieve  the  company  from  its  obligation 
if  that  warranty  be  broken,  is  a  question  still  undecided,  but 
the  weight  of  authority  would  seem  to  be  that,  whether 
warranty  or  condition,  the  insured  does  not  die  by  his  own 
voluntary  act  if  the  facts  bring  his  case  within  the  rule  which 
we  have  stated,  as  established  by  Mr.  Justice  Hunt  in  the 
Terry  case. 

233 


THE  LAW  OF  LIFE  INSURANCE 

SECOND  LECTURE 

When  a  loss  incurs  under  a  policy,  the  claimant  is  required 
by  its  terms  to  furnish  satisfactory  proofs  of  death.  These 
consist  of  certificates  from  the  attending  physician,  the 
undertaker,  and  the  beneficiary  named  in  the  policy  or  other 
person  entitled  to  the  fund,  setting  forth  the  title  of  the  claim- 
ant, and  the  details  of  the  illness,  death  and  burial  of  the 
deceased.  It  may  happen  that  the  certificate  of  the  attend- 
ing physician,  or  the  evidence  produced  at  the  Coroner's 
inquest,  shows  the  claim  to  be  invalid,  as  for  example  where 
the  physician  testifies  that  he  has  been  the  medical  attendant 
of  the  deceased  for  a  period  long  antedating  the  application, 
when  the  application  itself  denies  such  attendance,  or  where 
death  occurred  at  a  place  or  in  a  manner  forbidden  by  the 
policy.  In  this  case  the  question  at  once  arises,  if  the  claim- 
ant is  concluded  by  the  statement  made  in  the  proofs  so 
furnished  by  him.  This  is  answered  by  the  decision  of 
the  Court  of  Appeals  in  the  case  of  Goldschmidt  vs.  Insur- 
ance Company,  reported  in  102  N.  Y.,  486,  where  the  Cor- 
oner's inquest  found  that  the  insured  had  committed  suicide. 
It  was  claimed  on  the  trial  that  as  the  copy  of  the  proceedings 
of  the  inquest  given  in  addition  to  the  proofs  required  by 
the  policy  made  out  a  case  of  suicide,  the  plaintiffs  should 
be  required  to  show  that  this  finding  was  erroneous,  and 
that  the  burden  of  proof  was  upon  them.  Judge  Danforth 
says:  "I  can  discover  no  principle  upon  which  such  a  prop- 
osition can  stand.  The  policy  made  no  provision  for  it. 
The  original  proceedings  would  not  be  evidence  upon  the 

234 


THE  LAW  OF  LIFE  INSURANCE 

issue.  Its  verity  is  not  admitted  by  the  claimants;  it  is 
denied.  It  could  not  have  been  required  by  the  defendants; 
it  was  not  adopted  by  the  plaintiffs,  but,  out  of  what  must 
now  seem  ill-advised  courtesy,  was  furnished  to  the  defend- 
ants at  their  request.  It  contained  matter  which,  if  properly 
substantiated,  would  have  availed  the  defendants  in  main- 
taining an  affirmative  defense,  but  in  no  view  suggested  to  us 
by  the  learned  counsel  for  the  respondents  could  it,  as  now 
presented,  change  the  burden  from  them  to  the  plaintiffs. 
If,  by  any  process  of  reasoning,  any  part  could  be  taken  as 
an  admission  of  the  plaintiffs,  it  must  be  taken  as  a  whole, 
and  so  taken  is  no  concession  of  any  fact,  but  a  mere  communi- 
cation of  hearsay  evidence,  the  truth  of  which  is  at  the  same 
time  denied;  enough  to  put  defendants  upon  inquiry,  but  in 
itself  is  no  answer  to  the  plaintiffs'  claim  even  in  the  first 
instance."  Again,  it  may  happen  that  no  positive  proofs  of 
death  can  be  furnished.  The  insured  may  have  gone  to  sea 
in  a  vessel  which  never  reached  port;  he  may  have  taken 
passage  on  a  railroad  train  which  met  with  an  accident,  in 
which  the  cars  and  their  contents  were  so  entirely  destroyed 
that  identification  of  the  remains  or  even  of  personal  effects 
was  impossible,  or  he  may  simply  have  disappeared  from  the 
sight  of  men  without  leaving  any  trace  of  his  whereabouts  or 
any  grounds  for  a  reasonable  conjecture  as  to  his  movements 
or  his  fate.  All  of  these  cases  have  occurred,  and  each  par- 
ticular one  must  be  decided  on  its  own  merits  upon  the  best 
evidence  obtainable.  As  regards  disappearance,  simply, 
without  explanation,  and  unaccompanied  by  any  circum- 
stances of  especial  peril  to  life,  the  rule  is  established  that  a 

235 


THE  LAW  OF  LIFE  INSURANCE 

presumption  of  death  does  not  arise  until  that  absence  is 
continued  for  a  period  of  seven  years.  The  subject  is  elab- 
orately treated  by  Surrogate  Bradford  in  Eagle's  case  (3 
Abott's  Practice,  218),  in  which,  after  a  full  examination 
of  the  authorities,  he  sums  up  the  matter  as  follows:  "There 
can  be  no  doubt  that,  under  certain  circumstances,  this 
is  to  be  treated  as  a  question  of  fact,  and  the  language  of 
Lord  Denman  is  in  that  view  strictly  pertinent  when  he 
says : '  Nothing  can  be  more  absurd  than  the  notion  that  there 
is  to  be  any  rigid  presumption  of  law  on  such  questions  of 
fact  without  reference  to  accompanying  circumstances  — 
such,  for  instance,  as  the  age  or  health  of  the  party.  There 
can  be  no  such  strict  presumption  of  law.'  What,  however, 
is  a  court  or  jury  to  do  when  there  are  no  accompanying 
circumstances  —  when  there  is  no  ground  in  fact  for  infer- 
ring death  at  any  particular  time?  The  question  is  not 
whether  those  presumptions  are  rigid  and  strict,  but  whether 
there  are  any  such  presumptions,  and  if  so,  what  is  their 
effect  when  there  is  an  entire  dearth  of  evidence  tending 
to  guide  the  conclusion  as  to  life  or  death.  Confessedly, 
before  the  analogy  drawn  from  the  statutes  of  bigamy  and 
life  tenancies  prevailed,  it  was  a  rule  of  evidence  to  presume 
life,  unless  the  contrary  was  shown.  That  rule  still  con- 
tinues, except  so  far  as  it  has  been  modified  by  the  presump- 
tion, drawn  from  the  statutes,  of  death,  after  seven  years' 
absence  without  intelligence.  The  practical  effect  of  these 
two  rules,  if  both  are  to  be  taken  as  subsisting,  is  that  when- 
ever the  law  is  invoked  as  to  rights  depending  upon  the  life 
or  death  of  the  absent  party,  he  is  to  be  deemed  as  living 

236 


THE   LAW  OF  LIFE  INSURANCE 

until  the  seven  years  have  expired,  and  after  that  is  to  be 
deemed  as  dead.  Not  that  the  law  finds  as  a  matter  of  fact 
that  he  died  on  the  last  day  of  the  seven  years,  but  that  rights 
depending  on  his  life  or  death  are  to  be  administered  as  if  he 
had  died  on  that  day.  It  is  impossible  to  say  when  he  died, 
or  even  to  assert  as  a  matter  of  fact  that  he  is  dead;  but  in 
the  absence  of  all  evidence  the  law  will  account  him  as  dead 
at  a  certain  time  and  not  before.  This  is  an  artificial  rule, 
and  of  course  cannot  be  expected  to  square  with  the  actual 
fact.  It  is  the  logical  result  of  the  presumptions,  founded 
upon  reasons  of  convenience,  and  the  necessity  of  fixing  upon 
some  limit  within  which  the  relations  of  the  living  to  the 
absent  are  to  be  determined,  more  than  upon  any  strong 
probabilities.  This  is  the  meaning  of  our  statute  in  respect 
to  life  estates,  which  declares  that  if  the  life-tenant  shall 
absent  himself  for  seven  years,  and  his  death  shall  come  in 
question,  'such  person  shall  be  accounted  naturally  dead,' 
in  any  action  concerning  the  lands  in  which  he  had  the  estate 
for  life,  unless  sufficient  proof  be  made  that  he  is  still  living. 
(1  Rev.  Stats.  749,  Sect.  6;  see  Bigamy,  2  Rev.  Stats.  687, 
Sect.  91.)  He  shall  be  accounted  dead.  The  statute  so 
treats,  just  as  the  Common  Law  treated  and  accounted,  him 
living  until  his  death  was  proved.  In  neither  case  can  it  be 
said  that  his  life  or  death  has  been  actually  proved,  but  in 
both  cases  it  may  be  said  that  he  shall  be  accounted  living 
until  by  reason  of  his  absence  the  law  accounts  him  dead;  and, 
for  the  purposes  of  justice,  the  rights  and  relations  of  the 
parties  affected  by  his  life  or  decease  shall,  in  the  absence  of 
information,  be  determined,  by  this  technical  presumption. 

237 


THE  LAW  OF  LIFE  INSURANCE 

"This  certainly  seems  to  me  the  most  consistent  and 
symmetrical  rule;  and  when  it  is  regarded  as  a  dry  legal 
doctrine  adopted  for  the  purposes  of  convenience,  and  from 
the  necessity  of  having  some  limited  period  for  the  deter- 
mination of  the  rights  of  absent  persons,  and  not  as  a  de- 
termination upon  the  death  or  the  real  time  of  the  death, 
there  would  appear  to  be  no  grave  objection  against  it.  I 
am  inclined  to  hold,  therefore,  that  in  the  case  of  absent 
persons  it  is  within  the  province  of  the  Court  or  jury  to 
infer  from  circumstances,  if  any  appear  in  proof,  the 
probable  time  of  death,  but  that  if  no  sufficient  facts  are 
shown  from  which  to  draw  a  reasonable  inference  that  death 
occurred  before  the  lapse  of  seven  years,  the  person  will  be 
accounted,  in  all  legal  proceedings,  as  having  lived  during 
that  period." 

Under  this  rule  it  would  be  necessary  for  the  beneficiary 
or  assignee  of  a  policy  on  the  life  of  a  person  who  had  dis- 
appeared without  leaving  any  clue  to  his  destination  or  any 
reason,  aside  from  such  disappearance,  to  suppose  him  dead, 
to  continue  the  payment  of  the  premiums  for  the  seven  years 
following  such  disappearance  before  he  could  claim  the 
amount  payable  on  the  policy.  At  the  expiration  of  that 
period,  the  presumption  being  that  the  insured  was  dead,  it 
would  devolve  upon  the  insurer  to  prove  that  he  was  still 
living,  or  that  he  died  under  circumstances  which  avoided 
the  policy. 

Where  the  policy  is  payable  to  the  insured,  his  executors, 
administrators  or  assigns,  and  there  has  been  no  assignment 
of  it,  the  executor  or  administrator  duly  appointed  by  the 

238 


THE  LAW  OF  LIFE  INSURANCE 

Probate  Court  is  the  proper  claimant.  I  have  already  dis- 
cussed to  some  extent  the  matter  of  a  claim  by  an  assignee, 
and  where  the  beneficiaries  are  named  in  the  policy  it  is  not 
always  an  easy  matter  to  determine  the  proper  person  en- 
titled to  the  fund.  In  the  case  of  Bickerton  vs.  J agues  (35 
N.  Y.  Supreme  Court,  129)  the  policy  was  taken  out  by  the 
insured  upon  his  own  life,  payable  upon  his  death  to  his 
sister  Elizabeth.  She  died  during  his  lifetime  and  he  sur- 
rendered the  policy,  taking  out  another  for  the  same  amount 
payable  upon  his  death  to  his  nephew  David.  He  always 
retained  the  policies  in  his  own  possession,  paid  the  pre- 
miums when  due  upon  the  first  one,  and  allowed  the  dividends 
declared  upon  the  second  to  be  applied  to  the  payment  of 
the  premiums  accruing  upon  it.  After  his  death  a  question 
as  to  the  title  to  the  policy  arose  between  the  administrator 
of  the  deceased  sister  and  the  nephew,  and  the  controversy 
was  submitted  to  the  General  Term  upon  an  agreed  state- 
ment of  facts.  Judge  Daniels,  in  delivering  the  opinion  of 
the  Court,  says :  "  No  decisive  authority  has  been  found  in 
favor  of  the  position  taken  by  the  plaintiff  (the  adminis- 
trator), the  cases  affecting  the  right  of  the  person  obtaining 
the  policy  to  surrender  it  and  receive  another  payable  in  a 
different  manner  in  lieu  of  it  having  generally  arisen  under 
the  terms  of  the  statute  made  for  the  benefit  of  the  widow  and 
children.  These  cases  are  not  applicable  to  the  present  con- 
troversy, because  the  language  of  the  statute  is  not  broad 
enough  to  include  it.  Its  disposition  is  therefore  dependent 
upon  the  legal  principles  necessarily  applicable  to  such  a 
transaction,  and  according  to  them  it  should  be  governed  by 

239 


THE  LAW  OF  LIFE  INSURANCE 

the  intention  of  the  person  obtaining  the  insurance  so  far  as 
that  is  capable  of  being  gathered  from  the  attending  circum- 
stances. That  he  did  not  intend  to  place  the  insurance 
irrevocably  beyond  his  own  control  is  manifested  with  reason- 
able clearness  by  the  fact  that  he  always  retained  the  pos- 
session of  the  policy  himself,  and  he,  and  not  his  sister,  paid 
all  the  premiums  which  were  paid  upon  it.  And  after  such 
payments  were  made,  the  insurance  was  kept  up  by  the 
dividends  which  had  been  declared  and  credited  to  it  under 
the  rules  and  regulations  of  the  company.  In  addition  to 
these  circumstances  the  person  to  whom  the  first  policy  was 
made  payable  was  the  sister  of  Henry  H.  Jaques  (the  insured), 
by  whom  it  had  been  obtained.  She  had  lived  with  him, 
taking  care  of  his  household  and  family  for  many  years 
prior  to  her  own  decease,  and  she  was  entirely  dependent 
upon  him  for  her  support  and  maintenance.  It  is  reason- 
ably plain  from  these  facts  that  his  intention  in  procuring  the 
policy  was  to  provide  for  her  after  the  time  of  his  own  decease 
and  when,  by  reason  of  that  event,  he  would  be  incapable  of 
affording  her  any  further  assistance.  This  was  probably  the 
sole  and  only  intention  by  which  he  was  actuated  in  procur- 
ing the  insurance  and  from  that  it  must  necessarily  follow 
that  her  right  to  it  was  designed  to  be  contingent  upon  her 
surviving  him.  That  is  the  only  fair  and  rational  construc- 
tion to  be  placed  upon  the  transaction.  It  embodied  a 
provision  for  her  support  when  by  his  decease  he  would  be 
unable  to  provide  for  it,  and  the  occurrence  of  her  death 
before  his  own  defeated  the  object  and  purpose  by  which  he 
had  been  actuated  in  taking  out  the  insurance.  Her 

240 


THE  LAW  OF  LIFE  INSURANCE 

administrator  had  no  special  claim  upon  his  bounty,  neither 
did  any  of  her  next  of  kin,  and  no  reason,  therefore,  can  be 
discovered  for  the  existence  of  any  disposition  on  his  part  to 
provide  for  them  in  case  she  herself  failed  to  become  entitled 
to  the  money.  His  primary  and  substantial  purpose  was  to 
secure  the  means  of  sustaining  his  sister  after  his  own  decease, 
and  as  that  purpose  was  defeated,  he  was  left  at  liberty  to 
deal  with  the  insurance  as  he  himself  deemed  to  be  proper; 
subject  to  the  benefit  and  interest  to  be  secured  by  it  to  his 
sister  after  his  own  decease,  it  was  his  property.  The  pre- 
miums had  been  paid  upon  it  by  him,  and  as  it  could  not 
be  used  as  he  intended  it  should  when  he  obtained  it,  and 
during  the  time  he  made  these  payments  upon  it,  he  had 
the  authority  to  give  it  another  and  different  direction,"  and 
the  nephew  was  therefore  adjudged  entitled  to  the  fund. 
This  case  was  not  appealed  but  has  been  cited  with  approval 
in  the  Court  of  Appeals  (see  Whitehead  vs.  Insurance  Com- 
pany, 102  N.  Y.,  143),  and  may,  I  think,  be  accepted  as 
settled  law  in  this  State.  A  somewhat  similar  question  arose 
in  the  case  of  Olmstead  vs.  Keyes  (85  N.  Y.,  593).  There 
the  insured  took  out  a  policy  payable  to  the  plaintiff,  John 
Olmstead,  as  trustee  for  Huldah  Keyes,  the  wife  of  the 
applicant.  She  died  intestate  in  November,  1857,  leaving 
several  children,  and  thereafter,  in  August,  1861,  the  insured 
again  married,  and  in  1864,  the  plaintiff,  upon  the  request 
and  direction  of  the  insured,  assigned  to  the  second  wife  all 
his  right,  title,  and  interest  as  trustee  of  Huldah  Keyes  in  the 
policy.  A  controversy  arose  practically  between  the  assignee 
(the  second  wife)  and  the  children  of  the  first  wife.  The 

241 


THE  LAW  OF  LIFE  INSURANCE 

opinion  of  the  Court  was  delivered  by  Judge  Earl.  The 
Judge  cites  the  general  rule  of  the  Common  Law,  "that  all 
the  choses  of  the  wife  not  reduced  to  possession  during  the 
joint  lives  passed  to  the  husband  upon  her  death  —  all  without 
any  exception  —  and  there  is  no  authority  to  the  contrary," 
and  goes  on  to  say  that  "this  is  true  whether  said  choses  are 
then  payable  or  are  mere  reversionary  or  contingent  inter- 
ests payable  at  a  future  day  or  mere  possibilities."  Upon 
this  principle,  "the  wife's  interest  in  this  policy  was  a  chose 
in  action;  at  her  death  it  passed  to  her  husband.  He  then 
caused  it  to  be  assigned  to  his  second  wife,  Mary  L.,  and 
thus,  within  the  meaning  of  the  law,  he  reduced  it  to  pos- 
session. The  assignment  was  valid  as  against  him,  and  was, 
therefore,  valid  against  the  whole  world.  The  written 
assignment  is  expressed  to  have  been  for  value  received,  and 
in  the  absence  of  proof  to  the  contrary  must  be  assumed  to 
have  been,  but  whether  it  was  for  a  valuable  consideration 
or  not  it  was  good  as  against  him  and  that  is  sufficient,  as 
the  rights  of  a  surviving  wife  are  not  in  question.  Had  the 
chose  in  action  been  a  note  payable  at  his  death,  his  assign- 
ment thereof  would  have  been  valid,  and  for  precisely  the 
same  reason  his  assignment  of  this  policy  was  valid. 

"There  is  no  case  which  holds  that  a  life  policy  for  the 
benefit  of  the  wife,  her  husband  surviving,  passes  by  the 
rules  of  the  Common  Law  to  her  personal  representatives  for 
the  benefit  of  her  estate,  to  the  exclusion  of  her  husband. 
On  the  contrary,  it  is  stated  by  the  Chancellor  in  Moehr- 
ing  vs.  Mitchell  (1  Harbour's  Chancery,  264,  affirmed  in 
the  Court  of  Appeals,  4  Howard's  Practice,  292),  that  a 

242 


THE  LAW  OF  LIFE  INSURANCE 

policy  upon  the  life  of  a  husband  for  the  benefit  of  a  wife, 
in  a  case  where  the  wife  dies  first  and  then  the  husband, 
passed,  like  other  choses  of  the  wife,  to  the  personal  repre- 
sentatives of  the  husband.  In  that  case  the  general  rule  as 
to  the  survivorship  to  the  husband  of  the  choses  of  the  wife 
was  applied  to  the  policy  of  insurance  taken  by  her  upon 
his  life.  Even  if  it  were  true  that,  upon  the  death  of  Huldah, 
this  policy  could  remain  valid  only  in  the  hands  of  some 
person  having  an  interest  in  the  life  insured,  here  it  passed 
to  her  husband  and  then  to  his  second  wife,  and  both  had  an 
interest  in  the  life  insured." 

Very  many  questions  have  arisen  under  the  act  in  respect 
to  insurance  on  lives  for  the  benefit  of  married  women, 
passed  April  1,  1840,  and  the  several  acts  amendatory  there- 
of. This  statute  provides  in  effect  that  a  husband  may  insure 
his  life  for  the  benefit  of  his  wife  or  his  children  and  that,  no 
matter  what  his  financial  condition  may  be,  he  may  pay  a 
premium  not  exceeding  $500  per  year,  and  the  insurance  so 
obtained  shall  be  exempt  from  any  claims  of  his  creditors. 
These  policies  are  usually  made  payable  to  the  wife,  if  living 
at  the  death  of  the  insured,  and  in  case  of  her  previous  de- 
cease to  her  children  or  their  guardian.  The  most  important 
question  under  this  act,  and  one  still  unsettled,  is  whether  the 
children  of  a  deceased  child  take  the  share  of  their  parent  in 
the  policy.  It  was  very  fully  considered  by  the  Supreme 
Court  of  Connecticut,  in  the  case  of  Insurance  Company 
vs.  Palmer  (42  Conn.,  60).  The  Court  there  says:  "The 
moment  this  policy  was  executed  and  delivered  it  became 
property  and  the  title  to  it  vested  in  some  one.  It  will  not 

243 


THE  LAW  OF  LIFE  INSURANCE 

be  claimed  that  it  vested  in  the  person  whose  life  was  insured. 
It  must  have  vested,  then,  in  all  or  a  part  of  the  payees. 
The  payees  consisted  of  two  parties,  the  wife  and  the  chil- 
dren. As  only  one  could  take  and  enjoy  the  property, 
ultimately,  it  did  not  vest  in  all  as  tenants  in  common,  nor 
did  it  vest  in  either  so  as  to  give  a  right  to  the  present 
enjoyment  of  it.  It  was  not,  however,  a  mere  expectancy 
nor  a  naked  possibility,  but  it  was  a  possibility  coupled 
with  a  present  interest.  It  was  visible,  tangible  property, 
and,  like  any  other  insurance  policy,  it  was  capable  of  assign- 
ment, and  had  an  appreciable  value.  Each  party  took  a 
conditional,  not  an  absolute,  right  to  the  whole  policy.  It 
was  not  a  condition  precedent  but  subsequent.  The  title 
vested  in  point  of  right  immediately,  but  was  liable  to  be 
divested  upon  the  happening  of  a  subsequent  event.  The 
right  to  the  policy  in  a  strict  sense  was  not  contingent;  the 
possession  and  enjoyment  of  the  fund  thereby  created  were 
postponed  to  the  future,  and  were  contingent.  This  con- 
tingency applied  to  both  parties,  to  the  wife  as  well  as  to 
the  children.  Her  enjoyment  of  the  fund  depended  upon 
her  surviving  her  husband;  the  children's,  upon  her  husband 
surviving  her.  In  respect  to  each  it  was  a  then  present  right 
to  the  future  enjoyment  of  property,  but  it  was  liable  to  be 
defeated  by  a  subsequent  contingency,  and  it  was  certain  to 
be  defeated  as  to  one  of  them.  That  such  a  right  is  recog- 
nized as  property  and  is  transmissible  to  heirs  is  a  proposition 
abundantly  established  by  the  authorities."  This  doctrine 
has  been  followed  in  this  State,  in  the  case  of  Hull  vs.  Hull 
a  Special  Term  decision  made  by  Judge  Larremore  of  this 

244 


THE   LAW  OF  LIFE  INSURANCE 

city,  and  reported  in  62  Howard's  Practice,  100.  The 
case  was  not  appealed,  and  this  view  has  never  been  adopted 
by  the  higher  courts.  The  case  of  U.  S.  Trust  Co.  of  New 
York  vs.  Insurance  Company  (115  N.  Y.,  152)  appears 
to  differ.  In  this  the  wife  died,  leaving  her  surviving  her 
husband,  and  three  children,  one  of  whom  subsequently 
died  before  her  father,  leaving  three  children,  and  another 
died  intestate  and  without  issue,  leaving  her  surviving  her 
husband,  to  whom  letters  of  administration  were  issued. 
The  insurance  company  paid  one  third  of  the  amount  of 
the  policy  to  the  surviving  'child,  one  third  to  the  adminis- 
trator of  the  deceased  child,  and  the  other  third  to  the  guardian 
of  the  three  grandchildren. 

The  plaintiff  in  this  suit,  as  guardian  of  these  infants, 
sued  the  Company  to  recover  the  amount  paid  to  the  admin- 
istrator of  the  deceased  child,  claiming  that  such  payment 
was  wrongfully  made.  Judge  Earl  says:  "We  find  no  lan- 
guage in  the  policy  insuring  any  one  but  Mrs.  Finn  and  the 
children  of  Mr.  and  Mrs.  Finn.  If  Mrs.  Finn  survived  her 
husband  (the  life  insured)  the  sum  mentioned  in  the  policy 
was  payable  to  her.  When  she  died  before  her  husband  the 
only  persons  interested  in  the  policy  were  her  children  then 
living,  and  the  whole  policy  as  a  chose  in  action  belonged  to 
them.  They  held  vested  interests  therein,  as  they  could  in 
any  other  chose  in  action,  payable  at  a  future  time.  It  is 
true  that  it  was  the  purpose  of  the  act  of  1840  to  enable  the 
husband  to  make  a  provision  for  his  family;  but  how  that 
provision  should  be  made  was  to  be  determined  by  the  parties 
to  the  policy.  The  insurance  could  be  for  the  benefit  of  the 

245 


THE  LAW  OF  LIFE  INSURANCE 

wife  alone,  in  which  case  the  amount  insured  would  upon  the 
death  of  the  husband  be  payable  to  her  if  she  survived;  but 
if  she  died  before  him  it  would  then  vest  in  and  be  payable 
to  her  personal  representatives  and  not  to  her  children.  So, 
too,  the  insurance  could  be  made  payable  to  the  child;  in 
which  case  upon  the  death  of  the  father  it  would  be  payable 
to  the  personal  representatives  of  the  child,  if  dead.  Her 
grandchildren  are  not  named  and  their  names  cannot  be  put 
into  the  policy.  In  the  event  that  has  happened  the  policy 
might  be  construed,  and  is  payable  precisely  as  if  the  children 
alone  had  been  named  therein.  Therefore  when  Mrs.  Miles 
died  her  interest  in  the  policy  passed  to  her  administrator  as 
her  personal  representative  and  as  part  of  her  personal  estate, 
and  upon  the  death  of  Mr.  Finn,  one  third  of  the  policy  was 
payable  to  the  surviving  child,  one  third  to  the  administrator 
of  Mrs.  Miles,  and  one  third  to  the  administrator  of  Mrs. 
Anthon.  The  children  of  Mrs.  Anthon,  as  such,  could  have 
no  standing  to  maintain  an  action  to  recover  any  sum  due 
upon  the  policy.  But  even  if  they  could,  their  full  share  has 
already  been  paid  to  them."  So  far,  you  will  observe,  the 
decision  of  the  Court  does  not  differ  very  materially  from  the 
doctrine  in  the  Palmer  case,  it  being  only  to  the  effect  that 
the  persons  entitled  to  the  interest  of  the  deceased  child  are 
the  personal  representatives,  and  not  the  children.  But  the 
learned  Judge  goes  on  to  say:  "If,  however,  we  assume  that 
we  are  wrong  in  this  construction  of  the  policy,  then  upon 
the  death  of  Mrs.  Finn  the  policy  was  payable  to  her  children 
as  a  class,  and  those  of  the  class  would  take  who  were  in 
being  at  the  time  when  the  policy  became  payable,  and  in  no 

246 


THE  LAW  OF  LIFE  INSURANCE 

event  could  grandchildren  be  included  in  the  class.  In  that 
case  the  whole  policy  would  be  payable  to  the  only  survivor 
of  the  class,  to  wit:  Caroline  C.  Finn."  It  is  well  settled  in 
this  State  that  the  word  children  in  a  will  does  not  include 
grandchildren  (see  Palmer  and  others  vs.  Horn,  84  N.  Y., 
516).  And  it  is  probable  that  the  learned  Judge  had  this 
rule  in  mind  in  stating  the  dictum  which  I  have  just 
quoted. 

The  same  question  has  recently  been  presented  and  decided 
at  a  Special  Term  of  the  Supreme  Court  in  Albany  County 
by  Mr.  Justice  May  ham,  in  the  case  of  Walsh  vs.  Insurance 
Company.  Here  the  wife  had  three  children,  one  of  whom 
died  before  her  mother,  leaving  her  surviving  her  husband 
and  two  children,  and  another  died  after  the  mother,  leaving 
him  surviving  a  widow  and  two  children,  and  letters  of 
administration  were  issued  to  the  widow.  After  the  death 
of  the  insured,  who  survived  his  wife,  one  third  of  the  policy 
was  paid  to  the  surviving  child,  one  third  to  the  adminis- 
tratrix of  the  deceased  child,  and  the  other  third,  which  in 
the  opinion  of  the  company's  counsel  belonged  to  the  repre- 
sentatives of  the  child  who  died  during  the  lifetime  of  her 
mother,  was  retained  in  the  possession  of  the  company  to 
be  paid  to  those  representatives  on  demand.  A  suit  was 
brought  by  the  assignee  of  the  surviving  child  and  the  ad- 
ministratrix to  recover  the  amount.  The  principal  question 
in  the  case  was  whether  the  child  who  died  before  her  mother 
took  any  interest  in  the  policy  which  would  pass  to  her 
personal  representatives  or  children.  The  learned  Justice 
dissents  from  the  doctrine  of  the  Palmer  case,  holding  that 

247 


THE  LAW  OF  LIFE  INSURANCE 

"  this  policy  was  procured  on  the  application  of,  and  the  pay- 
ment of  the  premiums  by,  Rica  Traub  (the  wife  of  the  insured), 
and  was  by  its  terms  for  her  sole  use.  No  other  person  or 
persons  had  any  interest  in  it  or  in  its  proceeds  if  she  sur- 
vived her  husband.  On  the  execution  of  the  policy  she 
took  a  vested  interest  in  the  proceeds  which  could  only  be 
divested  on  the  happening  of  the  event  of  her  death  before 
that  of  her  husband.  The  interest  of  her  children  was  con- 
tingent upon  her  death  before  that  of  her  husband,  and  but 
for  the  happening  of  that  event  the  children  could  have  taken 
nothing  under  this  policy.  In  Whiiehead  vs.  Insurance 
Company  (102  N.  Y.,  141)  the  policy  provided  that  the 
proceeds  of  the  policy  should  belong  to  the  wife  and,  in 
case  of  her  death  before  the  one  on  whose  life  it  was  taken, 
then  to  the  children.  The  wife  died  before  the  husband  on 
whose  life  the  policy  was  made.  An  action  was  brought  by 
one  of  the  children,  and  the  Court  hi  discussing  the  case 
says:  'The  wife,  therefore,  in  this  case  had  a  vested  interest 
in  the  policies  at  the  moment  of  their  delivery,  by  force  of 
the  statute  which  permitted  them  to  be  made  in  their  existing 
form.'  None  of  the  children  in  that  case  died  before  the 
mother,  and  the  only  question  in  that  case  which  is  applicable 
to  this  is  as  to  the  wife's  interest  under  the  policy  at  the  time 
of  its  execution.  The  vested  interest  which  the  wife,  in  that 
case  and  in  this,  took  was  in  the  whole  policy  and  to  the 
right  to  the  whole  of  the  proceeds  of  the  same,  and  that 
vested  interest  could  only  be  divested  by  her  death  before 
her  husband.  That  event  had  not  occurred  at  the  time  of 
the  death  of  Bessie  Gross  (the  child  who  died  during  the 

248 


THE  LAW  OF  LIFE  INSURANCE 

lifetime  of  her  mother),  and  at  that  time  she  could  have  had 
no  vested  interest  in  the  same.  There  was  nothing,  there- 
fore, at  that  time  for  the  personal  representatives  to  take, 
and  as  she  had  no  vested  interest  her  next  of  kin  acquired 
none  by  her  death.  Her  children,  who  were  the  grand- 
children of  Rica  Traub,  were  not  named  in  the  policy,  and  as 
was  said  in  U.  S.  Trust  Co.  vs.  Insurance  Company,  supra: 
'Her  grandchildren  are  not  named,  and  their  names  cannot 
be  put  in  the  policy.'"  This  case  is  not  yet  reported,  but  an 
appeal  is  to  be  taken,  and  it  is  to  be  hoped  that  an  authorita- 
tive decision  will  be  rendered  which  will  relieve  the  com- 
panies of  all  further  embarrassment  in  reference  to  this 
question.1 

It  has  been  before  the  General  Term  of  the  Supreme 
Court  in  this  Department  in  the  case  of  Lane  vs.  De  Metz 
(66  N.  Y.  Supreme  Court,  462).  In  this  case  the  policy  was 
payable  by  its  terms  to  the  wife  of  the  insured  if  living,  and 
if  not  living  to  his  children  or  their  guardian,  and  IS  there 
be  no  such  children  surviving,  then  to  the  executors,  admin- 
istrators, or  the  assigns  of  the  insured.  The  wife  died 
before  her  husband,  leaving  two  children,  one  of  whom  died 
before  the  father,  leaving  issue.  The  Court  distinguished  the 
Palmer  case,  holding  that  the  provision  making  the  fund 
payable  to  the  representatives  of  the  insured,  in  case  he  left 
no  children  surviving  him,  showed  an  intention  that  only  such 
children  as  survived  should  take  an  interest  in  the  policy. 
The  late  Judge  Brady,  who  delivered  the  opinion,  does  not 

1  This  decision  was  reversed  by  the  General  Term  —  See  39  State 
Reporter,  710. 

249 


THE  LAW  OF  LIFE  INSURANCE 

agree  with  Judge  Mayham  in  holding  that  the  wife  took  a 
vested  interest  in  the  policy.  He  says:  "It  is  not  doubted 
that  the  wife  of  the  insured  did  not  take  a  vested  interest  in 
these  moneys.  Her  right  to  them  depended  upon  the  con- 
tingency of  her  survival  of  her  husband.  It  is  apparent  from 
the  provision  in  the  policies  that  such  money  was  to  be  paid 
to  her  if  living,  which  meant  living  at  the  time  of  the  death 
of  the  insured,  at  which  time  the  policies  matured  and  not 
before.  According  to  the  terms  of  the  policies,  if  the  wife  of 
the  insured  was  not  living  at  the  time  of  his  death,  the 
amount  of  the  insurance  was  to  be  paid  to  the  children  of  the 
insured  or  to  their  guardian  for  their  use,  and  if  there  were  no 
such  children  surviving,  then  it  was  to  be  paid  to  the  execu- 
tors, administrators,  or  assigns  of  the  insured.  From  this 
phraseology  the  conclusion  seems  to  be  inevitable  that  the 
children  of  the  insured  had  not  nor  had  either  of  them  a  vested 
interest  during  the  life  of  the  insured;  it  being  expressly 
provided  by  the  policies  that  if  there  should  not  be  any 
surviving  children  of  his,  the  insurance  money  should  go 
to  his  executors,  administrators,  or  assigns."  So  we  must 
await  the  decision  of  the  Court  of  Appeals  before  knowing 
whether,  in  this  State,  the  interest  of  the  wife  in  such  a  policy 
is  vested  or  contingent. 

Another  subject  of  long-continued  litigation  in  reference 
to  policies  of  this  class  is  the  assignability  of  such  policies  by 
the  husband  and  wife.  In  the  case  of  Eadie  vs.  Slimmon 
(26  N.  Y.,  10)  the  question  was  elaborately  discussed.  The 
facts  in  the  case  would  have  justified  an  avoidance  of  the 
assignment  on  the  ground  of  duress,  it  having  been  obtained 

250 


THE  LAW  OF  LIFE  INSURANCE 

from  the  wife  of  the  insured  by  threats;  but  the  court  pre- 
ferred to  base  its  decision  upon  the  theory  that  the  policy, 
being  issued  under  the  statute  for  the  protection  of  married 
women,  could  not  legally  be  assigned.  Mr.  Justice  Denio, 
in  delivering  the  opinion  of  the  Court,  says:  "By  the  Common 
Law  a  person  could  insure  his  own  life  for  any  sum  for  which 
he  might  choose  to  pay  the  premium,  and  the  insurers  would 
engage  to  insure.  But  if  one  desired  to  insure  the  life  of 
another,  he  could  only  insure  the  interest  which  he  had  in 
such  other  life.  It  he  undertook  to  insure  a  gross  sum,  and 
the  contract  was  not  susceptible  of  a  construction  which 
would  limit  the  recovery  to  the  actual  damages  sustained, 
the  contract  would  be  void  under  the  statutes  against  betting 
and  gaming.  This  principle  the  legislature,  by  the  act 
of  1840,  relaxed  in  reference  to  insurance  effected  by  a  mar- 
ried woman  for  any  sum  which  she  and  the  insurance  com- 
pany might  see  fit  to  contract  for.  It  was  provided  that 
in  the  case  of  her  surviving  her  husband,  the  amount  payable 
by  the  terms  of  the  policy  should  be  payable  to  her  for  her 
own  use,  free  from  all  claims  of  the  representatives  of  her 
husband  or  of  his  creditors.  There  is  another  feature  in 
the  act  which  shows  that  it  was  an  enabling  and  not  a  declar- 
atory provision.  By  the  general  rules  of  law,  a  policy  on  the 
life  of  one  sustaining  only  a  domestic  relationship  to  the 
insured  would  become  inoperative  by  the  death  of  such 
insured  in  the  lifetime  of  the  cestui  que  vie,  or  if  it  could  be  con- 
sidered as  existing  for  any  purpose  after  that  event,  it  would 
be  for  the  benefit  of  the  personal  representatives  of  the  in- 
sured, but  by  this  act  the  contract  may  be  continued  in  favor 

251 


THE  LAW  OF  LIFE  INSURANCE 

of  the  children  of  the  insured  wife  after  her  death.  These 
features  distinguish  this  case  from  that  of  an  ordinary  chose 
in  action  belonging  to  a  married  woman  as  her  separate 
estate.  The  provision  is  special  and  peculiar,  and  looks  to  a 
provision  for  a  state  of  widowhood  and  for  orphan  children; 
and  it  would  be  a  violation  of  the  spirit  of  the  provision  to 
hold  that  a  wife  insured  under  this  act  could  sell  or  traffic 
with  her  policy  as  though  it  were  realized  personal  property 
or  an  ordinary  security  for  money." 

This  doctrine,  which  is  really  an  example  of  judicial  legis- 
lation, has  since  been  adhered  to  by  the  courts  of  this  State, 
and  in  the  case  of  Brummer  vs.  Cohn  (86  N.  Y.,  11)  it  was 
extended  to  a  policy  payable  by  its  terms  to  the  wife,  her 
executors,  administrators,  or  assigns.  The  Court,  per  Judge 
Andrews,  says:  "The  contention  that  to  bring  an  insurance 
by  a  wife  upon  the  life  of  her  husband  within  the  operation 
of  the  act  of  1840,  it  must  appear  from  the  terms  of  the  policy, 
or  from  extrinsic  evidence,  that  it  was  the  intention  of  the 
insured  to  avail  herself  of  the  provisions  of  the  act  cannot,  we 
think,  be  maintained.  The  right  of  a  wife  to  insure  the  life 
of  her  husband  was  not  given  by  that  act.  She  had  an  insur- 
able  interest  in  her  husband's  life  at  Common  Law.  The 
amount  insured  must  necessarily  be  the  measure  of  damages 
in  case  of  death.  The  pecuniary  interest  of  a  wife  in  her 
husband's  life  is  incapable  of  exact  measurement.  The 
insurer,  by  issuing  a  policy  to  the  wife,  agrees  that  her  interest 
is  at  least  equal  to  the  sum  insured,  and  the  policy  is  in  the 
nature  of  a  valued  policy  and  the  full  amount  insured  is 
recoverable,  in  case  of  death,  without  proof  of  actual  dam- 

252 


THE  LAW  OF  LIFE  INSURANCE 

ages.  Nor  did  the  provision  in  the  second  section  of  the  act 
of  1840,  that  the  insurance  by  a  wife  on  the  life  of  her  husband 
may,  in  case  of  her  death  before  the  decease  of  her  husband, 
be  made  payable  to  her  children,  confer  any  new  power,  or 
authorize  a  contract  which  before  the  statute  would  be  un- 
authorized. There  does  not  seem  to  be  any  ground  to  doubt 
that  before  the  statute  a  provision  in  a  life  policy  issued  to  a 
wife  on  her  husband's  life,  that  in  the  event  of  her  death 
before  the  death  of  her  husband  the  policy  should  inure  to 
the  benefit  of  her  children,  would  have  been  entirely  valid 
and  enforceable.  But  the  act  of  1840  did  secure  to  the  wife 
the  benefit  of  an  insurance  on  the  life  of  her  husband  pro- 
cured by  or  for  her  and  in  her  name,  in  case  she  survived  her 
husband,  free  from  any  claim  by  him  or  his  representatives 
or  creditors,  subject  to  the  limitation  that  the  annual  premium 
paid  should  not  exceed  a  specified  sum. 

"In  this  respect  the  act  of  1840  is  enabling  and  not  declar- 
atory. The  act  does  not  require  that  it  should  appear  by  the 
policy  that  it  was  issued  under  the  act  in  order  that  the  in- 
sured should  have  the  benefit  of  its  provisions.  There  are 
no  restrictive  terms.  The  act  is  remedial  and  was  passed  for 
the  benefit  of  married  women  and  their  children,  and  the 
intention  of  a  married  woman  in  insuring  the  life  of  her 
husband  to  avail  herself  of  its  provisions  is  inferable  from  its 
beneficial  nature." 

The  rule  of  law  thus  established  produced  so  much  dis- 
satisfaction that  the  legislature  was  compelled  to  interfere, 
and  it  provided  (by  Chapter  341  of  the  Laws  of  1873)  that 
such  a  policy  could  be  surrendered  for  its  cash  value  by 

253 


THE  LAW  OF  LIFE  INSURANCE 

the  wife  and  husband,  on  complying  with  certain  prescribed 
formalities,  to  the  company  issuing  it,  or  could  be  assigned 
by  the  wife  and  husband  provided  there  were  no  children. 
As  this  act  deprives  the  children  of  any  rights  which  they 
might  have  in  a  policy  so  issued,  it  has  always  been  con- 
sidered by  counsel  for  insurance  companies  to  be  uncon- 
stitutional as  impairing  the  obligation  of  contracts  in  respect 
to  policies  made  before  the  passage  of  the  act  in  favor  of  the 
wife  and  children,  and  to  apply  only  to  policies  issued  since 
its  date.  This  question,  so  far  as  I  am  aware,  has  never  been 
presented  for  judicial  construction.  By  Chapter  248  of  the 
Laws  of  1879,  it  was  further  provided  that  any  policy  payable 
to  the  wife  could  be  assigned  by  her  with  the  consent  of  her 
husband,  and  this  is  considered  valid  so  far  as  the  interest  of 
the  wife  herself  is  concerned.  The  act  came  up  for  con- 
struction in  the  case  of  Anderson  vs.  Goldsmidt  (45  New 
York  Supreme  Court,  360.  Affirmed  in  the  Court  of  Appeals 
in  103  N.  Y.,  617).  The  policy  is  in  the  ordinary  statutory 
form,  payable  to  the  wife  if  living,  and  if  not,  to  her  children, 
and  the  assignment  was  made  by  the  husband  and  wife  in 
writing  subsequent  to  the  passage  of  the  act  of  1879. 

Judge  Earl  says:  "Objection  is  made  that  there  was  not 
in  this  case,  within  the  meaning  of  this  statute,  the  written 
consent  of  the  husband  to  this  assignment.  But  by  uniting 
with  his  wife  in  executing  the  assignment  he  consented  thereto 
in  writing.  It  would  be  taking  a  very  narrow  view  of  the 
statute,  quite  inadmissible,  to  hold  that  the  purpose  of  the 
statute  was  not  fully  answered  by  the  execution  of  the  assign- 
ment in  that  way.  The  mere  fact  that  she  had  children  at 

254 


THE  LAW  OF  LIFE  INSURANCE 

the  time  she  executed  the  assignment  did  not  render  her 
assignment  void.  The  statute,  whether  there  be  children  or 
not,  gives  the  wife,  with  the  consent  of  her  husband,  the 
absolute  power  to  assign  or  surrender  the  policy.  It  is  quite 
true  that  the  children  had  a  contingent  interest  in  the  policy 
which  would  have  become  vested  in  case  the  wife  had  died 
before  the  policy  matured.  But  here  she  survived  that 
period,  and  hence  the  contingency  did  not  arise  which  gave 
the  children  any  interest  whatever  in  the  policy.  At  the 
time  of  this  assignment  there  was  no  law  and  no  public  policy 
which  prohibited  the  wife  from  assigning  any  interest  which 
she  had  in  the  policy,  and  by  the  assignment  which  she 
executed  plaintiff's  testator  became  vested  with  the  entire 
interest  in  the  policy,  and  there  is  no  defense  to  the  plaintiff's 
claims  to  the  amount  due  thereon." 

The  statutory  provision  that  an  insurance  policy  in  favor 
of  a  married  woman  or  her  children  is  not  liable  for  the  debts 
of  the  husband  has  been  extended  to  mean  that  such  a  policy 
is  not  liable  for  the  debts  of  the  wife.  In  the  case  of  Smillie 
vs.  Quin  (90  N.  Y.,  492)  the  wife  during  her  husband's  life 
assigned  such  a  policy  in  trust  for  the  benefit  of  her  children, 
and  the  assignment  was  attacked  by  her  judgment  creditors. 
Judge  Earl,  delivering  the  opinion  of  the  Court,  after  refer- 
ring to  the  statute  of  1840,  says:  "The  object  of  that  statute, 
as  construed  by  the  courts  in  cases  like  this,  was  to  secure 
the  insurance  for  the  benefit  of  the  wife,  if  she  should  survive 
her  husband ;  and  in  all  the  cases  upon  the  subject  the  policies 
had  been  assigned  out  of  the  family,  in  violation  of  the  spirit 
and  policy  of  the  law,  and  in  all  of  them  the  wife  asserted 

255 


THE  LAW  OF  LIFE  INSURANCE 

her  claim  against  the  assignment  which  had  been  made. 
In  this  case,  even  if  it  be  conceded  the  wife  could  have  avoided 
the  assignments  of  these  policies,  could  anybody  else  avoid 
them  ? 

"It  would  certainly  be  in  violation  of  the  spirit  and  policy 
of  the  law  to  allow  her  creditors  to  come  in  and  avoid  assign- 
ments which  she  had  made,  either  for  her  benefit  or  the 
benefit  of  her  children,  and  thus  sweep  away  the  whole  in- 
surance. It  is  sufficient  to  hold  that  in  a  proper  case  she 
or  her  personal  representatives  can  avoid  the  assignments, 
and  thus  at  all  times  claim  the  benefit  which  it  was  the  pur- 
pose of  the  statute  to  secure  to  her.  But  if  she  does  not  seek 
to  avoid  the  assignments  and  reclaim  the  policies,  or  to 
secure  the  moneys  due  upon  them,  she  cannot  be  compelled 
to.  She  could  take  the  money  upon  the  policies  and  give  it 
away;  and  she  could  renounce  all  claim  to  it  and  allow  any 
person  under  her  assignments  to  receive  it.  She  is  sufficiently 
protected  if  she  is  permitted  to  assert  the  invalidity  of  the 
assignments.  It  will  do  her  no  good  and  do  her  family  no 
good,  if  creditors  or  strangers  are  permitted  to  come  in  and 
assert  the  invalidity  of  the  assignments,  for  the  purpose  of 
sweeping  away  the  amount  of  the  insurance.  We  are,  there- 
fore, of  the  opinion  that  this  defendant,  representing  judg- 
ment creditors  of  the  wife,  was  not  in  a  position  to  assail  her 
assignments  under  the  statute  of  1840. 

"It,  therefore,  only  remains  to  be  inquired  whether  these 
assignments  were  fraudulent  as  to  the  judgment  creditors, 
and,  therefore,  void;  and  we  are  clearly  of  the  opinion  that 
they  were  not.  At  any  time  prior  to  the  death  of  her  husband 

256 


THE   LAW  OF  LIFE  INSURANCE 

she  had  no  interest  in  these  policies  which  a  creditor  could 
seize.  If  she  had,  then  the  policy  of  the  law  could  be  thwarted 
in  every  case.  She  could  keep  these  policies  in  life  if  she 
chose,  or  allow  them  to  lapse.  She  was  not  bound  to  keep 
up  the  insurance,  neither  was  her  husband  bound  to  keep 
it  up  for  her  benefit.  As  she  was  not  in  a  position  to  assign 
the  policies  to  her  creditors  so  as  to  absolutely  cut  off  her 
right,  her  creditors  could  not  take  them  so  as  to  bar  her 
right,  and,  therefore,  it  was  no  fraud  upon  her  creditors  for 
her  to  make  the  assignments  at  that  time  to  her  children.  It 
was  like  the  disposition  of  property  exempt  from  execution, 
of  which  creditors  cannot  complain." 

A  question  may  arise  as  to  the  amount  to  be  claimed  under 
a  policy.  A  case  of  this  character  has  just  been  decided 
(Reigel,  Admx.,  etc.,  vs.  Insurance  Company,  140  Pa.,  193) 
by  the  Supreme  Court  of  Pennsylvania,  the  Appellate  Court 
of  that  State,  upon  a  somewhat  novel  state  of  facts.  There 
a  creditor  took  out  a  policy  on  the  life  of  his  debtor  and  paid 
premiums  for  a  number  of  years,  the  payments  being  con- 
tinued by  his  administratrix  after  his  death.  The  burden 
becoming  heavy,  she  surrendered  the  policy  to  the  company 
by  which  it  was  issued,  obtaining  for  it  a  paid-up  policy  for 
a  smaller  amount,  being  the  proportionate  amount  of  insur- 
ance equivalent  to  the  premiums  already  paid.  At  the  time 
of  this  transaction,  both  the  administratrix  and  the  company 
had  lost  sight  of  the  life  insured  and  assumed  that  he  was  still 
living,  but  it  was  subsequently  ascertained  that  he  had  died 
some  ten  days  before  the  change  was  made.  She  then  de- 
manded a  restoration  of  the  original  policy,  and  upon  the 

257 


THE  LAW  OF  LIFE  INSURANCE 

refusal  of  the  company  to  grant  her  request  filed  a  bill  in 
equity  to  compel  its  return  to  her  for  the  purpose  of  bringing 
suit  upon  it,  to  which  the  defendant  demurred  and  had  judg- 
ment upon  the  demurrer. 

An  appeal  was  then  taken  to  the  Supreme  Court,  and  in 
deciding  the  appeal  the  Court,  through  Mr.  Justice  Williams, 
says,  referring  to  the  surrender  of  the  original  policy:  "At 
the  time  she  made  it  she  was  already  relieved  from  the  bur- 
densome premiums  and  the  entire  amount  of  the  policy  was 
honestly  due  her  from  the  company.  What  was  the  effect 
of  the  mistake  upon  her  ?  Simply  to  take  from  her  the  differ- 
ence between  the  two  policies  and  give  her  absolutely  nothing 
for  it.  She  surrendered  a  policy  for  $6,000  on  which  the 
liability  of  the  company  was  already  fixed,  and  received 
for  it  one  of  $2,500,  to  secure  relief  from  a  burden  already 
removed.  The  company  parted  with  nothing;  she  secured 
nothing.  The  whole  transaction  was  a  mistake,  and  if  the 
decree  of  the  court  below  stands,  the  result  will  be  to  take 
$3,500  from  her  and  give  it  to  the  insurance  company.  These 
facts  seem  to  us  to  present  a  clear  and  strong  case  for  equitable 
relief;  so  strong,  indeed,  that  the  mere  statement  of  them  is 
the  only  argument  necessary  for  its  support.  The  duty  of 
the  Chancellor  to  relieve  in  cases  of  mutual  mistake  is  so 
well  settled  that  no  citation  of  authorities  can  be  needed. 
The  learned  Judge  who  heard  this  case  in  the  court  below, 
and  who  is  thoroughly  familiar  with  the  principle  to  which 
we  have  referred,  seems  to  have  been  misled  in  regard  to  the 
facts  set  up  in  the  bill. 

"He  treats  the  arrangement  made  as  a  compromise  of  a 
258 


THE  LAW  OF  LIFE  INSURANCE 

claim  against  the  company  for  the  alleged  death  of  the  in- 
sured, which  the  administratrix  was  unable  to  establish, 
because  unable  to  show  his  death.  As  the  fact  of  his  death 
and  the  consequent  liability  of  the  company  on  the  policy 
were  uncertain,  it  was  a  case  for  the  application  of  the  doc- 
trine that  an  adjustment  of  a  doubtful  claim  constituted  a 
valid  consideration  for  the  surrender  of  the  policy  and  the 
acceptance  of  a  new  one,  and  upon  this  theory  the  decree  was 
entered.  But  it  nowhere  appears  that  she  made  any  claim 
on  the  company  or  supposed  that  she  had  any;  she  asked 
relief  from  future  payments  of  premiums  on  a  policy  on  which 
she  supposed  future  payments  would  have  to  be  made,  and 
to  get  this  relief  she  was  willing  to  sacrifice  more  than  one 
half  of  the  sum  insured.  The  company  was  willing,  in  con- 
sideration of  this  large  reduction  of  its  liabilities,  to  give  her 
a  policy  for  what  her  payments  would  purchase  and  relieve 
her  in  future.  This  is  an  exchange  often  made  and  adjusted 
by  well-settled  rules.  It  was  a  compromise  of  nothing.  We 
do  not  doubt  the  correctness  of  the  rule  applied  by  the  learned 
Judge,  in  cases  to  which  it  is  fairly  applicable,  but  this  is  not 
one  of  them.  The  plaintiff  distinctly  avers  that  she  did  not 
know  of  the  death  of  the  insured  until  some  ten  days  after 
the  exchange  of  the  policies  was  effected,  and  that  both 
parties  to  the  transaction  were  acting  in  respect  thereto  on 
the  basis  that  he  was  living. 

"She  distinctly  avers  that  the  object  of  the  arrangement 
was  to  secure  relief  for  herself  from  the  indefinite  payment 
of  premiums  that  had  become  burdensome  to  her;  that  the 
new  policy  was  accepted  for  that  reason  and  the  old  one 

259 


THE  LAW  OF  LIFE  INSURANCE 

surrendered  at  a  time  when,  had  she  known  of  the  fact,  she 
was  entitled  to  demand  the  entire  sum  upon  which  she  had 
so  long  and  so  steadily  paid  the  burdensome  premiums. 
Upon  these  facts,  if  the  attention  of  the  learned  Judge  had 
not  been  directed  from  them,  we  feel  sure  that  he  would  have 
reached  the  conclusion  that  we  have  reached  —  that  it  would 
be  grossly  inequitable  to  hold  the  plaintiff  to  a  bargain  made 
under  the  influence  of  a  mistake  of  facts  like  that  before  us. 
This  mistake  the  demurrer  admits.  If  there  had  been  any 
circumstances  which  the  defendant  could  have  set  up  to  show 
that  a  correction  of  this  mistake  at  this  time  would  be  in- 
equitable, it  would  have  been  shown  to  the  Court  by  answer." 
This  opinion  was  approved  by  a  bare  majority  of  the  Judges, 
the  vote  being  four  to  three. 

THIRD  LECTURE 

As  you  are  probably  aware,  the  far  larger  proportion  of 
insurance  policies  are  obtained  through  the  personal  solicita- 
tions of  agents.  While  every  prudent  man  insures  his  house 
or  his  household  goods  against  the  chance  of  destruction  by 
fire  as  a  matter  of  course,  comparatively  few  regard  as  equally 
necessary  insurance  on  their  lives,  or,  rather,  while  they  all 
admit  its  advantage  or  desirability,  the  effecting  of  such  in- 
surance is  postponed  from  day  to  day.  So  all  the  companies 
employ  numbers  of  agents  throughout  the  countries  where 
they  do  business  to  solicit  risks,  and  hence  has  arisen  what 
might  almost  be  termed  a  conflict  between  the  companies  and 
the  insured.  The  companies,  being  obliged  to  employ  great 
numbers  of  men,  of  many  of  whom  they  can  know  but  little 

260 


THE  LAW  OF  LIFE  INSURANCE 

at  the  "Home  Office,"  have  endeavored  to  restrict  the  powers 
of  those  agents  within  the  narrowest  possible  limits,  and  by 
clauses  in  their  applications,  policies  and  published  documents 
bring  these  restrictions  to  the  notice  of  the  insured.  On  the 
other  hand,  the  applicant  (it  may  be  the  inhabitant  of  a  small 
country  village)  knows  nothing  of  the  company  or  its  officers 
in  a  distant  city,  and  relies  entirely  upon  the  agent,  with 
whom  he  is  acquainted  and  whom  he  regards  as  the  plenipo- 
tentiary, if  not  the  incarnation,  of  the  corporation.  The 
Courts  have  endeavored  to  reconcile  or  rather  mediate  be- 
tween these  conflicting  views,  and  a  few  of  the  cases  upon  the 
points  decided  will  be  of  interest.  In  the  case  of  Insurance 
Company  vs.  Wilkinson,  reported  in  13  Wallace,  222,  the 
trial  Judge  admitted  parol  testimony  to  show  that  one  of 
the  answers  in  the  application  was  not  in  fact  made  by  the 
applicant,  but  was  filled  in  by  the  agent  from  information 
obtained  from  other  persons.  One  of  the  principal  points  in 
the  case  on  appeal  was  the  propriety  of  the  admission  of  this 
evidence.  On  this  question,  Mr.  Justice  Miller  said:  "It  is 
obvious  that  the  soundness  of  the  Court's  instructions  must 
be  tested  mainly  by  the  answer  to  be  given  to  the  question, 
'Whose  agent  was  Ball  (the  man  who  wrote  the  answers)  in 
filling  up  the  application?' 

"This  question  has  been  decided  differently  by  courts  of 
the  highest  respectability  in  cases  precisely  analogous  to  the 
present.  It  is  not  to  be  denied  that  the  application,  logically 
considered,  is  the  work  of  the  assured,  and  if  left  to  himself 
or  to  such  assistance  as  he  might  select,  the  person  so  selected 
would  be  his  agent,  and  he  alone  would  be  responsible. 

261 


THE  LAW  OF  LIFE  INSURANCE 

On  the  other  hand,  it  is  well  known,  so  well  that  no  court 
would  be  justified  in  shutting  its  eyes  to  it,  that  insurance 
companies  organized  under  the  laws  of  one  State,  and  having 
in  that  State  their  principal  business  office,  send  these  agents 
all  over  the  land  with  instructions  to  solicit  and  procure 
applications  for  policies,  furnishing  them  with  printed  argu- 
ments in  favor  of  the  value  and  necessity  of  life  insurance, 
and  of  the  special  advantages  of  the  corporation  which  the 
agent  represents.  They  pay  these  agents  large  commis- 
sions on  the  premiums  thus  obtained,  and  the  policies  are 
delivered  at  their  hands  to  the  assured.  The  agents  are 
stimulated  by  letters  and  instructions  to  activity  in  procuring 
contracts,  and  the  party  who  is  in  this  manner  induced  to 
take  out  a  policy  rarely  sees  or  knows  anything  about  the 
company  or  its  officers  by  whom  it  is  issued,  but  looks  to  and 
relies  upon  the  agent,  who  has  persuaded  him  to  effect  the 
insurance  as  the  full  and  complete  representative  of  the  com- 
pany in  all  that  is  said  or  done  in  making  the  contract.  Has 
he  not  a  right  to  so  regard  him  ?  It  is  quite  true  that  the 
reports  of  judicial  decisions  are  filled  with  the  efforts  of  these 
companies,  by  their  counsel,  to  establish  the  doctrine  that 
they  can  do  all  this  and  yet  limit  their  responsibility  for  the 
acts  of  these  agents  to  the  simple  receipt  of  the  premium  and 
delivery  of  the  policy,  the  argument  being  that  as  to  all  other 
acts  of  the  agent  he  is  the  agent  of  the  assured.  This  propo- 
sition is  not  without  support  in  some  of  the  earlier  decisions 
on  the  subject;  and  at  a  time  when  insurance  companies 
waited  for  parties  to  come  to  them  to  seek  assurance,  or  to 
forward  applications  on  their  own  motion,  the  doctrine  had  a 

262 


THE  LAW  OF  LIFE  INSURANCE 

reasonable  foundation  to  rest  upon.  But  to  apply  such  a 
doctrine  in  its  full  force  to  the  system  of  selling  policies 
through  agents,  which  we  have  described,  would  be  a  snare 
and  a  delusion,  leading,  as  it  has  done  in  numerous  instances, 
to  the  grossest  frauds,  of  which  the  insurance  corporations 
receives  the  benefits,  and  the  parties  supposing  themselves 
insured  are  the  victims.  The  tendency  of  the  modern  deci- 
sions in  this  country  is  steadily  in  the  opposite  direction. 
The  powers  of  the  agent  areprana  facie  co-extensive  with  the 
business  intrusted  to  his  care,  and  will  not  be  narrowed  by 
limitations  not  communicated  to  the  person  with  whom  he 
deals.  An  insurance  company  establishing  a  local  agency 
must  be  held  responsible  to  the  parties  with  whom  it  transacts 
business  for  the  acts  and  declarations  of  the  agent,  within 
the  scope  of  his  employment,  as  if  they  proceeded  from  the 
principal. 

"In  the  5th  Edition  of  American  Leading  Cases,  after  a 
full  consideration  of  the  authorities,  it  is  said: 

By  the  interested  or  officious  zeal  of  the  agents  employed 
by  the  insurance  companies,  in  the  wish  to  outbid  each 
other  and  procure  custom,  they  not  infrequently  mislead 
the  insured  by  a  false  or  erroneous  statement  of  what  the 
application  should  contain,  or  taking  the  preparation  of  it 
into  their  own  hands,  procure  his  signature  by  an  assurance 
that  it  is  properly  drawn  and  will  meet  the  requirements  of 
the  policy.  The  better  opinion  seems  to  be  that,  when  this 
course  is  pursued,  the  description  of  the  risk  should,  though 
nominally  proceeding  from  the  insured,  be  regarded  as  the 
act  of  the  insurers.' 

263 


THE  LAW  OF  LIFE  INSURANCE 

"The  modern  decisions  fully  sustain  this  proposition,  and 
they  seem  to  us  founded  in  reason  and  justice,  and  meet  our 
entire  approval.  This  principle  does  not  admit  oral  testi- 
mony to  vary  or  contradict  that  which  is  in  writing,  but  it 
goes  upon  the  idea  that  the  writing  offered  in  evidence  was 
not  the  instrument  of  the  party  whose  name  is  signed  to 
it;  that  it  was  procured  under  such  circumstances  by  the 
other  side  as  estops  that  side  from  using  it  or  relying  on 
its  contents;  not  that  it  may  be  contradicted  by  oral  testi- 
mony, but  that  it  may  be  shown  by  such  testimony  that  it 
cannot  be  lawfully  used  against  the  party  whose  name  is 
signed  to  it." 

After  taking  this  broad  view  of  the  agent's  powers,  the 
same  Court  decided,  in  Hoffman  vs.  Insurance  Company 
(92  U.  S.,  161),  that  an  agreement  between  an  agent  of  an 
insurance  company  and  an  applicant  for  insurance  whereby 
the  former,  without  authority  from  the  company,  accepted, 
by  way  of  satisfaction  of  a  premium  payable  in  money, 
articles  of  personal  property,  is  a  fraud  upon  the  company, 
and  no  valid  contract  against  it  arises  therefrom.  In  this" 
case  the  agent  made  an  arrangement  with  the  applicant  by 
which  he  accepted,  among  other  things,  in  part  payment  of 
the  premium  due  the  company,  a  horse  valued  at  $400.  Mr. 
Justice  Swayne,  in  delivering  the  opinion  of  the  Court,  says: 
"Life  Insurance  is  a  cash  business.  Its  disbursements  are 
all  in  money,  and  its  receipts  must  necessarily  be  the  same 
medium.  This  is  the  universal  usage  and  rule  of  all  such 
companies.  Goodwin  (the  agent)  had  settled  his  own  debt 
to  Hoffman  of  $53.67,  and  had  appropriated  to  himself 

264 


THE  LAW  OF  LIFE  INSURANCE 

Hoffman's  note  of  $100.  If  he  had  the  right  to  take  his  per- 
centage in  such  a  way  as  he  might  think  proper,  this  did 
not  justify  his  taking  the  horse  at  $400,  nor,  if  the  general 
agent  of  the  company  had  expressly  agreed  to  take  the  horse 
in  payment  of  a  premium  pro  tanto,  could  that  have  given 
validity  to  the  transaction.  If  the  agent  had  authority  to 
take  the  horse  in  question,  he  could  have  taken  other  horses 
from  Hoffman,  and  have  taken  them  in  all  cases.  This 
would  have  carried  with  it  the  right  to  establish  a  stable, 
employ  hands,  and  do  everything  else  necessary  to  take  care 
of  the  horses  until  they  could  be  sold.  The  company  might 
thus  have  found  itself  carrying  on  a  business  alien  to  its  char- 
ter, and  in  which  it  had  never  thought  of  embarking.  The 
exercise  of  such  a  power  by  the  agent  was  liable  to  two  objec- 
tions. It  was  ultra  vires,  and  it  was  a  fraud  as  respects  the 
company.  Hoffman  must  have  known  that  neither  Goodwin 
nor  the  general  agent  had  any  authority  to  enter  into  such  an 
arrangement,  and  he  was  a  party  to  the  fraud.  No  valid 
contract  as  to  the  company  could  arise  from  such  a  transac- 
tion. This  objection  is  fatal  to  the  appellant's  case."  In  the 
case  of  Sands  vs.  Insurance  Company  (50  N.  Y.,  626)  the 
payment  of  a  premium  in  January,  1862,  to  an  agent  of 
the  company  at  Mobile,  in  Confederate  Treasury  notes,  then 
substantially  the  only  currency  of  the  so-called  Confederate 
States  for  the  general  business  of  those  States,  was  held  to 
be  a  valid  payment. 

It  may  be  remarked,  incidentally,  that  the  prompt  pay- 
ment of  the  premiums  accruing  on  an  insurance  policy  is  a 
condition  precedent  to  a  recovery,  and  that  nothing  but  the 

265 


THE  LAW  OF  LIFE  INSURANCE 

consent  or  waiver  of  the  company  can  excuse  the  failure  to 
make  the  payment  when  due.  In  the  case  of  Howell  vs.  In- 
surance Company  (44  N.  Y.,  276)  the  insured  was  stricken 
with  paralysis  on  the  morning  of  the  day  on  which  the  pre- 
mium became  due,  and  died  the  next  day.  Mr.  Commis- 
sioner Gray  says:  "The  payment  of  the  premium  was  an  act 
which  could  have  been  performed  by  any  other  person  than 
the  plaintiff's  husband  (who  was  the  life  insured).  Its  pay- 
ment did  not  necessarily  depend  upon  his  continued  capacity 
or  existence;  and  hence,  although  he  was,  shortly  prior  to  the 
expiration  of  the  policy,  when  about  to  pay  the  premium, 
rendered  incapable  by  the  act  of  God,  she  is  without  the  rule 
that  relieves  a  party  from  the  consequences  of  an  omission  to 
do  an  act  rendered  impossible  by  Omnipotent  Power.  It  is 
claimed  that  because  Howell  was,  about  two  hours  before 
the  expiration  of  the  policy,  fatally  stricken,  that  he  at  once 
relapsed  into  and  remained  in  a  dying  condition  until  the 
next  day,  when  he  died,  he  was,  within  the  meaning  of  the 
policy,  dead  before  it  expired.  It  must  be  borne  in  mind 
that  this  is  not  a  policy  upon  property,  but  upon  life.  It  is 
not  enough  that  his  life  was  in  such  peril  that  no  hope  was 
left  of  a  partial  recovery,  and  that,  so  far  as  his  continued 
existence  could  have  benefited  the  plaintiff  or  her  children 
by  any  provision  he  could  have  made  for  their  comfort,  his 
life  to  them  may  in  that  respect  have  been  worthless.  It  was 
not  against  his  ill  health  or  against  any  attack  of  apoplexy  or 
paralysis  or  fatal  epidemic  that  he  was  insured,  but  against 
his  death  from  any  cause  other  than  those  excepted  in  the 
policy.  If  it  were  not  so,  and  he  had  been,  on  the  day  before 

266 


THE  LAW  OF  LIFE  INSURANCE 

the  policy  expired,  in  the  last  stage  of  consumption,  and 
from  that  cause  in  a  dying  condition,  and  had  died  the  next 
day  after  it  had  expired,  the  defendant  would  have  been 
liable.  The  length  of  time  a  diseased  man  may,  before 
death,  be  in  a  dying  condition,  whether  from  sudden  attack 
or  long  illness,  is  undefined.  Howell  might  have  been 
attacked  two  days  or  more  before  the  expiration  of  the  policy 
and  remained  in  what  is  ordinarily  understood  as  a  dying 
condition  until  a  day  or  more  after  it  expired,  and  the  result 
would  be  that,  in  cases  of  this  kind,  if  from  satisfactory  evi- 
dence a  jury  should  find  that  the  life  insured  was  stricken 
with  disease  and  death  two  days  before  the  policy  expired, 
and  lived  until  after  its  expiration,  the  insurer  would  be  liable. 
And  thus,  in  order  that  a  party  for  whose  benefit  a  policy  is 
issued  may  determine  upon  his  rights  under  it,  his  first  duty 
would  be  to  consult  a  doctor  to  learn  whether  his  patient  is 
in  a  dying  condition,  instead  of  his  policy  to  learn  with  cer- 
tainty that,  if  he  is  alive  when  the  policy  expires,  the  insur- 
ance will  terminate."  The  same  point  was  decided  in  the 
Stathem  case  (93  U.  S.,  24)  where  Mr.  Justice  Bradley  says: 
"It  must  be  conceded  that  promptness  of  payment  is  essential 
in  the  business  of  life  insurance.  All  the  calculations  of  the 
insurance  company  are  based  on  the  hypothesis  of  prompt 
payments.  They  not  only  calculate  upon  the  receipt  of  the 
premiums  when  due,  but  on  compounding  interest  upon 
them.  It  is  on  this  basis  that  they  are  enabled  to  offer  assur- 
ance at  the  favorable  rates  they  do.  Forfeiture  for  non- 
payment is  a  necessary  means  for  protecting  themselves  from 
embarrassment.  Unless  it  were  enforceable  the  business 

267 


THE  LAW  OF  LIFE  INSURANCE 

would  be  thrown  into  utter  confusion.  It  is  like  the  for- 
feiture of  shares  in  mining  enterprises,  and  all  other  hazardous 
undertakings.  There  must  be  power  to  cut  off  unprofitable 
members,  or  the  success  of  the  whole  scheme  is  endangered. 
The  insured  parties  are  associates  in  a  great  scheme.  This 
associated  relation  exists  whether  the  company  be  a  mutual 
one  or  not.  Each  is  interested  in  the  engagements  of  all,  for 
out  of  the  co-existence  of  many  risks  arises  the  law  of  average 
which  underlies  the  whole  business.  An  essential  feature  of 
this  scheme  is  the  mathematical  calculations  referred  to  on 
which  the  premiums  and  the  amounts  assured  are  based. 
And  these  calculations,  again,  are  based  on  the  assumption 
of  average  mortality,  and  of  prompt  payments  and  compound 
interest  thereon.  Delinquency  cannot  be  tolerated  nor  re- 
deemed except  at  the  option  of  the  company.  This  has 
always  been  the  understanding  and  the  practise  in  this  depart- 
ment of  business.  Some  companies,  it  is  true,  accord  a  grace 
of  thirty  days,  or  other  fixed  period,  within  which  the  pre- 
mium in  arrear  may  be  paid,  on  certain  conditions  of  con- 
tinued good  health,  etc.  But  this  is  a  matter  of  stipulation 
or  discretion  on  the  part  of  the  particular  company.  When 
no  stipulation  exists  it  is  the  general  understanding  that 
time  is  material  and  that  the  forfeiture  is  absolute  if  the 
premium  be  not  paid.  The  extraordinary  and  even  des- 
perate efforts  sometimes  made  when  the  insured  person  is 
in  extremis  to  meet  a  premium  coming  due  demonstrates  the 
common  view  of  this  matter.  The  case,  therefore,  is  one  in 
which  time  is  material  and  of  the  essence  of  the  contract. 
Non-payment  at  the  day  involves  absolute  forfeiture,  if  such 

268 


THE  LAW  OF  LIFE  INSURANCE 

be  the  terms  of  the  contract,  as  is  the  case  here.  Courts 
cannot  with  safety  vary  the  stipulation  of  the  parties  by  intro- 
ducing equities  for  the  relief  of  the  insured  against  their  own 
negligence." 

Of  late  years,  some  companies  have  inserted  in  their 
policies  a  general  clause  to  the  effect  that  they  shall  be  incon- 
testable after  the  lapse  of  two  years  from  the  date  of  their 
issue,  if  the  premiums  be  promptly  paid.  The  effect  of  this 
stipulation  was  considered  in  the  case  of  Wright  vs.  Insur- 
ance Company  (50  N.  Y.  Supreme  Court,  61),  at  the  General 
Term  of  the  Fourth  Department.  Judge  Follett  says:  "The 
stipulation  provides  that  the  validity  of  the  policy  shall  not 
be  questioned  after  the  death  of  the  insured;  and  not  after 
two  years  from  the  date  of  its  issue.  An  action  for  the  re- 
covery of  the  sum  insured  not  being  maintainable  until  after 
the  death  of  the  insured,  one  effect  of  the  stipulation,  if  valid, 
is  to  prevent  the  insurer  from  interposing  as  a  defense  the 
falsity  of  the  representations  of  the  insured.  But  its  effect 
is  not  to  prevent  the  insurer  from  annulling  the  contract  upon 
the  ground  of  the  fraudulent  representations  of  the  insured, 
provided  an  action  for  that  purpose  is  brought  in  the  lifetime 
of  the  insured,  and  within  two  years  from  the  date  of  the 
policy.  The  practical  and  intended  effect  of  the  stipulation 
is,  as  held  by  the  trial  court,  to  create  a  short  statute  of  limita- 
tions in  favor  of  the  insured,  within  which  limited  period 
the  insurer  must  test,  if  ever,  the  validity  of  the  policy.  It 
is  settled  that  a  stipulation  in  a  policy  limiting  the  time 
within  which  an  action  may  be  brought  thereon  is  not  against 
public  policy,  and  that  an  action  begun  after  the  lapse  of 

269 


THE  LAW  OF  LIFE  INSURANCE 

the  stipulated  time  cannot  be  maintained.  If  a  stipulation 
shortening  the  period  within  which  the  statute  permits  the 
insured  to  enforce  his  rights  in  the  courts  is  not  against  public 
policy,  it  is  difficult  to  see  upon  what  ground  a  stipulation 
shortening  the  time  which  the  statute  and  the  rules  of  the 
Common  Law  give  an  insurer  to  enforce  its  rights  in  the  courts 
can  be  held  to  contravene  public  policy.  In  Wood  vs.  Dwarris 
(11  Exch.,  493),  an  action  on  a  life  policy  was  defended  on 
the  ground  that  it  was  issued  upon  the  express  condition  that 
if  any  statement  in  the  application  was  untrue  the  policy 
should  be  void,  and  that  certain  statements  were  untrue. 
The  plaintiff  replied  that  the  defendant  issued  a  prospectus, 
which  came  to  the  knowledge  of  the  insured,  stating  that  all 
policies  were  indisputable,  except  in  cases  of  fraud.  The 
defendant  rejoined  that  the  policy  and  the  application  formed 
the  contract,  and  that  the  prospectus  was  not  binding;  but 
the  Court  held  the  rejoinder  bad  and  the  stipulation  binding. 
The  stipulation  in  that  case  did  not,  like  the  one  at  bar,  cut 
off  a  defense  based  upon  the  fraudulent  representations  of 
the  insured,  but  in  another  respect  it  was  broader  than  the 
stipulation  under  consideration,  because  it  absolutely  cut  off 
the  insurer's  right  to  litigate  the  validity  of  the  policy  because 
of  the  untruth  of  the  representation,  no  time  being  given  to 
the  insurer  in  which  to  contest  upon  the  ground  that  the 
representations  were  untrue. 

"A  stipulation  like  the  one  under  consideration  ought  to 
be  an  incentive  for  the  insurer  to  exercise  vigilance  and  good 
faith  in  investigating  the  truth  or  falsity  of  the  representations 
upon  which  the  policy  is  issued,  while  the  matter  is  fresh. 

270 


THE  LAW  OF  LIFE  INSURANCE 

The  witnesses  are  all  alive  and  the  exact  truth  can,  if  ever, 
be  ascertained;  and  the  stipulation  prevents  the  insured  from 
lying  by  and  receiving  the  premiums  during  the  life  of  the 
insured,  and  after  his  death,  when  the  good  faith  and  truth 
of  his  representations  cannot  be  supported  by  his  oath,  con- 
testing the  policy  upon  the  ground  that  the  insured's  repre- 
sentations were  false  or  untrue.  Such  stipulation  is  neither 
unreasonable  nor  contrary  to  public  policy. 

"The  stipulation  in  the  application,  that  any  fraudulent 
or  untrue  statements  vitiate  the  policy,  and  the  stipulation 
under  consideration  are  not  inconsistent.  The  stipulation 
in  the  application  preserves  the  company's  right  to  avoid 
the  policy  for  fraud  or  untrue  statements  during  the  time 
limited." 

The  case  was  affirmed  in  the  Court  of  Appeals  and  is 
reported  in  118  N.  Y.,  237.  In  delivering  the  opinion  of  the 
Appellate  Court,  Mr.  Judge  Potter  says:  "The  Court  is 
asked  to  hold  that  the  parties  to  the  stipulation  understood 
(for  unless  the  insured  so  understood  the  stipulation  the 
defendant  was  practising  a  fraud  upon  him)  that  while  the 
stipulation  embraced  all  representations  that  were  untrue, 
it  did  not  embrace  the  same  stipulations  if  known  by  the 
party  making  them  to  be  untrue.  The  practical  difference 
or  effect  of  this  would  be  that,  upon  a  trial  to  enforce  the 
contract,  the  proofs  of  the  representations,  their  materiality 
and  untruth,  would  have  to  be  made  all  the  same,  but  the 
stipulation  would  come  in  as  a  defense  to  all  representations 
save  those  the  insured  knew  to  be  false. 

"While  I  might,  perhaps,  entertain  the  idea  that  the 
271 


THE  LAW  OF  LIFE  INSURANCE 

insurer  so  understood  the  stipulation,  I  am  very  confident 
that  the  insured  did  not  so  understand  it. 

"It  seems  to  me  the  analogy  is  based  upon  the  entire 
misconception  of  the  object  and  meaning  of  the  stipulation. 
It  is  not  a  stipulation  absolute  to  waive  all  defenses  and  to 
'condone  fraud.'  On  the  contrary,  it  recognizes  fraud  and 
all  other  defenses,  but  it  provides  ample  opportunity  within 
which  they  may  be,  but  beyond  which  they  may  not  be 
established.  It  is  in  the  nature  of  and  serves  a  similar  pur- 
pose as  statutes  of  limitation  and  repose,  the  wisdom  of 
which  is  apparent  to  all  reasonable  minds.  It  is  exemplified 
in  the  statute  giving  a  certain  period  after  the  discovery  of  a 
fraud  in  which  to  apply  for  redress  on  account  of  it,  and  in 
the  law  requiring  prompt  application  after  its  discovery  if 
one  would  be  relieved  from  a  contract  infected  with  fraud. 
The  parties  to  a  contract  may  provide  for  a  shorter  limitation 
thereon  than  that  fixed  by  law,  and  such  an  agreement  is  in 
accord  with  the  policy  of  statutes  of  that  character. 

"No  doubt  the  defendant  held  it  out  as  an  inducement  to 
insurers  by  removing  the  hesitation  in  the  minds  of  many 
prudent  men  against  paying  ill-afforded  premiums  for  a 
series  of  years,  and  in  the  end,  and  after  the  payment  of 
premiums,  the  death  of  the  insured  and  the  loss  of  his  and 
the  testimony  of  others,  the  claimant,  instead  of  receiving  the 
promised  insurance,  is  met  by  an  expensive  lawsuit  to  deter- 
mine that  the  insurance  which  the  deceased  has  been  paying 
for  through  many  years  has  not  and  never  had  an  existence 
except  in  name.  While  fraud  is  obnoxious  and  should  justly 
vitiate  all  contracts,  the  courts  should  exercise  care  that  fraud 

272 


THE  LAW  OF  LIFE  INSURANCE 

and  imposition  should  not  be  successful  in  annulling  an 
agreement  to  the  effect  that  if  cause  be  not  found  and  charged 
within  a  reasonable  and  specified  time,  establishing  the  in- 
validity of  the  contract  of  insurance,  it  should  thereafter  be 
treated  as  valid." 

With  all  due  respect  for  the  learned  Court,  I  cannot  concur 
in  this  decision.  To  quote  the  somewhat  exuberant  lan- 
guage of  counsel  in  the  brief  filed  in  the  case  of  the  Com- 
mercial Bank  of  Manchester  vs.  Bucker  (20  Howard  U.  S., 
108):  'Fraud  vitiates  everything  into  which  it  enters.  It 
is  like  the  deadly  and  noxious  simoon  of  arid  and  desert 
climes.  It  prostrates  all  before  its  contaminating  touch 
and  leaves  only  death  and  destruction  in  its  train.  No  act, 
however  solemn,  no  agreement,  however  sacred,  can  resist 
its  all-destroying  power. 

"All  acts  into  which  fraud  enters  are  nullities." 
The  doctrine  thus  grandiloquently  expressed  is  sound,  and 
it  is  well  settled  that  "if  a  transaction  has  been  originally 
founded  on  fraud,  the  original  vice  will  continue  to  taint  it, 
however  long  the  negotiation  may  continue,  or  into  whatever 
ramification  it  may  extend.  Not  only  is  the  person  who 
committed  the  fraud  precluded  from  deriving  any  benefit 
under  it,  but  an  innocent  person  is  so  likewise,  unless  there 
has  been  some  consideration  moving  from  himself.  In 
equity  no  length  of  time  will  elapse  to  protect  and  screen 
fraud.  'Those,'  said  Lord  Cottenham  in  Trevelyan  vs. 
Charter  (4  L.  J.  Ch.  N.  S.,  214),  'who  may  be  disposed 
fraudulently  to  appropriate  to  themselves  the  property  of 
others,  may  be  assured  that  no  time  will  secure  them  in  the 

273 


THE  LAW  OF  LIFE  INSURANCE 

enjoyment  of  their  plunder;  and  their  children's  children  will 
be  compelled  by  this  Court  to  restore  it  to  those  from  whom 
it  has  been  fraudulently  abstracted ' !  The  right  of  the  party 
defrauded  to  have  the  transaction  set  aside  is  not  affected  by 
lapse  of  time,  so  long  as  he  remains,  without  any  fault  of  his 
own,  in  ignorance  of  the  fraud  which  has  been  committed." 
(Kerr  on  Fraud  and  Mistake,  page  51.)  This  being  the  rule 
of  the  Common  Law,  I  am  not  satisfied,  notwithstanding  the 
decision  of  the  Court  of  Appeals,  that  the  insurer  would  be 
bound  by  a  contract  into  which  he  had  been  misled  by  the 
fraudulent  misrepresentations  of  the  insured,  especially  when 
it  is  remembered  that  it  is  usually  practically  impossible  for 
him  to  ascertain  the  real  facts  in  the  case  during  the  lifetime 
of  the  insured.  In  this  connection  I  may  be  pardoned  in 
quoting,  from  an  address  delivered  some  years  ago,  senti- 
ments which  my  later  experience  in  examining  these  cases 
has  not  modified: 

"The  insurer  of  a  life  stands  in  a  different  position  from 
one  who  insures  a  house;  the  latter  may  examine  his  risk 
carefully  and  thoroughly  —  he  may  ascertain  its  distance 
from  neighboring  buildings,  the  nature  of  the  walls  between 
it  and  them,  the  internal  supports,  the  arrangement  of  the 
heating  apparatus,  the  character  of  the  roof,  the  probability 
of  total  or  partial  loss  in  case  of  fire,  the  efficiency  of  the 
department  on  which  he  must  depend  for  the  extinction  of  a 
conflagration,  the  nature  of  the  business  carried  on  in  it  and 
adjacent  buildings,  and  every  conceivable  element  which 
enters  into  the  calculation  of  his  risk.  They  are  all  existent 
patent  to  his  investigation,  and  it  is  his  own  fault  if  he  does 

274 


THE  LAW  OF  LIFE  INSURANCE 

not  enter  into  his  contract  with  a  clear  and  perfect  under- 
standing of  the  risk  which  he  assumes.  With  the  insurer  of 
life  the  case  is  very  different.  Certain  elements  of  the  calcu- 
lation are,  of  course,  within  his  reach.  He  can  estimate 
properly  the  influence  of  the  climate  in  which  the  proposed 
life  dwells,  the  hazard  of  his  occupation,  the  especial  diseases 
to  which  his  locality  is  exposed,  and  the  average  length  of 
human  life.  From  all  these  facts  he  can  deduce  a  table  of 
life  which  will  enable  him  to  rate  exactly  the  cost  of  insuring 
the  theoretical  man.  But  when  he  comes  to  carry  his  theories 
into  practise,  he  has  in  reality  no  means  of  ascertaining 
whether  the  life  proposed  reaches  the  average  standard  but 
the  statements  made  to  him  by  that  proponent.  Medical 
men  know  very  well  that  there  may  be  inherited,  or  even 
acquired,  tendencies  towards  certain  diseases  which  no 
physical  examination  will  detect,  and  against  which  the  in- 
surer can  be  warned  only  by  a  true  and  accurate  family  and 
personal  history.  The  tremendous  influence  over  the  ques- 
tion of  life  or  death,  which  is  wielded  by  such  tendencies,  by 
habit,  by  temperament,  is  an  important  factor  in  every  cal- 
culation upon  a  single  life,  and  cannot  be  properly  estimated 
unless  every  circumstance  and  fact  which  the  insurer  desires 
to  know  is  stated  to  him  fully  and  accurately.  I  recall  a  case 
in  which  the  applicant  for  insurance  presented  a  clear,  un- 
questionable record.  One  sister  had  died  of  yellow  fever; 
it  was  true,  but  he  omitted  to  add  that,  had  the  fever  spared 
her,  she  would  have  died  of  consumption  within  six  months. 
Another  sister  died  of  suppressed  menses;  it  was  also  true, 
but  he  omitted  to  state  that  vicarious  menstruation  ensued 

275 


THE  LAW  OF  LIFE  INSURANCE 

from  the  lungs,  and  caused  her  speedy  death.  So  with  several 
members  of  his  family,  who,  with  well-developed  phthisis, 
had  actually  died  from  other  causes.  The  applicant  himself 
was  apparently  sound,  and  physical  exploration  failed  to 
discover  any  symptoms  of  disease,  yet  his  death  within  a  year 
from  consumption  showed  that  he  must  have  had  strong  ten- 
dencies towards  that  disease,  and  investigation  developed  the 
facts  I  have  detailed.  As  is  usual  in  such  cases,  no  ground  of 
suspicion  was  presented  until  the  death  occurred.  Then  the 
very  fact  of  such  a  death  showed  that  misrepresentations  must 
have  been  made  and  not  until  suspicion  was  thus  aroused  was 
such  an  investigation  deemed  desirable.  It  is  practically 
impossible  to  verify  at  the  outset  every  statement  made  by  an 
applicant  for  life  insurance,  and  as  he  knows,  and  from  the 
nature  of  the  case  must  know,  the  truth  or  falsity  of  what  he 
alleges,  it  was  only  just  that  those  claiming  under  him  should 
be  bound  by  his  representations.  If  his  death  occur  from  a 
cause  or  under  circumstances  inconsistent  with  his  statements 
the  insurer  is,  for  the  first  time,  informed  that  those  statements 
were  false,  and  is  justified,  both  in  law  and  in  good  morals, 
in  resisting  a  demand  based  upon  a  contract  into  which  he 
was  led  by  the  misrepresentations  of  the  contracting  party 
upon  whom  he  relied." 

That  deliberate,  intentional  fraud  is  a  good  defense  to  an 
action  upon  a  policy,  even  in  the  absence  of  any  express 
stipulations,  is  held  in  the  case  of  Smith  vs.  Insurance  Com- 
pany (123  N.  Y.,  85).  The  facts  are,  as  Judge  Finch  says  in 
the  opinion  of  the  Court,  unusual  and  extraordinary.  "  In 
answer  to  the  plaintiff's  demand  for  the  sum  payable  by  the 

276 


THE  LAW  OF  LIFE  INSURANCE 

defendant's  policy  of  life  insurance,  the  company  took  upon 
itself  the  difficult  burden  of  proving  that  the  insured  perpe- 
trated a  deliberate  fraud,  planned  upon  a  broad  scale,  and 
accomplished  by  taking  his  own  life;  that  his  efforts  to  achieve 
success  failing,  and  a  future  of  poverty  and  debt  seeming  to 
await  him,  he  determined  to  secure  a  large  insurance  ($282,- 
000,  in  thirty-six  different  companies)  upon  his  life,  appro- 
priate it  to  the  payment  of  his  creditors  and  the  comfort  and 
support  of  his  relatives,  and  reach  the  result  by  suicide.  The 
difficult  burden  was  successfully  borne,  as  the  verdict  of  the 
jury  has  determined,  and  the  sole  inquiry  now  is  whether  the 
scope  and  range  of  the  evidence  admitted,  showing  the  acts 
and  declarations  of  the  assured,  transcended  the  lawful  limit 
or  violated  the  rules  of  evidence."  After  discussing  the 
several  exceptions  to  the  evidence  the  learned  Judge  says: 
"These  acts  and  declarations  all  occurred  before  the  plaintiff 
took  his  policy  as  collateral,  and  when  they  affected  no  one 
but  Tyler  (the  life  insured)  himself.  They  tended  to  show 
the  origin  and  progress  of  the  fraudulent  intent,  the  manner 
of  its  growth  and  the  motive  from  which  it  sprang.  They 
indicate  a  sane  and  deliberate  purpose  moving  steadily  to  its 
result,  and  constitute  a  part  of  the  history  of  the  fraud.  They 
were  contemporaneous  with  the  fraud  in  its  formative  stages; 
they  accompanied  Tyler's  efforts  to  raise  money,  which  failed, 
and  to  procure  an  insurance  upon  his  life  which  he  knew  he 
could  not  continuously  maintain.  They  show  the  motive  of 
the  fraud,  and  mark  its  progress  and  harmonize  so  com- 
pletely with  all  which  afterward  occurred  as  to  constitute, 
with  that,  elements  of  the  single  transaction,  the  fraudulent 

277 


THE  LAW  OF  LIFE  INSURANCE 

conduct  which  raised  the  issue  presented  by  the  defense. 
And  so  I  think  the  proof  came  fairly  within  the  rule  relating 
to  the  res  gestw  and  did  not  transcend  its  limits. 

"Some  of  this  evidence  was  resisted  upon  the  ground  that 
death  by  suicide  was  no  defense  under  the  terms  of  the  policy. 
That  is  true,  but  the  defense  was  fraud,  and  suicide  the 
ultimate  agency  by  which  the  fraud  was  accomplished.  It 
was  necessary,  therefore,  to  prove  it,  and  in  such  manner 
as  to  indicate  that  it  was  not  an  insane  or  sudden  impulse, 
but  the  culmination  and  effective  working  out  of  the  deliber- 
ately conceived  purpose  of  fraud." 

In  the  case  of  Wright  (supra)  it  was  intimated  that  it  was 
the  duty  of  the  insurer  to  exercise  vigilance  and  good  faith  in 
investigating  the  truth  or  falsity  of  the  representations  in  the 
application  while  the  insured  was  living,  and  not,  after  re- 
ceiving premiums  for  a  series  of  years  without  question,  raise 
the  issue  after  his  death.  This  is  a  view  commonly  taken, 
although,  as  I  have  shown,  in  most  cases  there  is  no  reason  to 
doubt  the  good  faith  of  the  applicant  until  death  occurs. 
Judge  Follett  implies  that  the  insurer  may  bring  an  action  to 
annul  the  contract  on  the  ground  of  fraudulent  misrepresen- 
tations during  the  life  of  the  insured,  but  this  is  not  beyond 
question.  It  has  been  held  in  England  (Barker  vs.  Walters 
8  Beaver,  96)  that  when  a  policy  is  void  by  reason  of  any 
fraudulent  misrepresentation  the  company  is  entitled  to  file  a 
bill,  to  have  it  delivered  up  to  be  canceled,  and  that  this  is  a 
right  possessed  in  common  with  every  person  from  whom  any 
deed  or  other  instrument  has  been  obtained  by  fraud  or  mis- 
representation, but  in  this  country  the  weight  of  authority 

278 


THE  LAW  OF  LIFE  INSURANCE 

appears  to  be  against  this  proposition.  In  Insurance  Com- 
pany vs.  Stanchfield,  U.  S.  Circuit  Court  for  the  District  of 
Minnesota  (2  Abbott,  C.  C.,  1),  before  Justices  Miller  and 
Dillon,  and  in  Insurance  Company  vs.  Bailey  (13  Wallace, 
616)  the  loss  had  occurred  before  the  bills  were  filed,  and  they 
were  dismissed  substantially  on  the  ground  that  the  insurers 
could  set  up  the  facts  alleged  as  a  defense  in  suits  upon  the 
policies,  and  that  the  cases  were  therefore  amenable  to  the 
familiar  rule  that  equity  will  not  intervene  where  the  remedy 
at  law  is  perfect. 

In  Insurance  Company  vs.  Insurance  Company  in  the 
U.  S.  Circuit  Court  of  Connecticut  (17  Blatchfo'rd,  142)  the 
suit  was  to  cancel  a  policy  that  the  company  had  already 
attempted  to  cancel,  upon  the  ground  that  the  insured  had 
become  so  far  intemperate  as  to  impair  his  health,  the  policy 
stipulating  that  it  should  be  void  if  this  contingency  hap- 
pened. The  owner  of  the  contract  refused  to  agree  to  the 
cancellation,  but  continued  to  tender  the  premiums.  The 
bill  was  filed  to  definitely  determine  the  rights  of  the  parties. 
A  demurrer  was  interposed  to  the  bill  and  overruled.  Two 
reasons  were  alleged  why  the  Court  should  sustain  the  de- 
murrer. The  first  was  that,  while  a  Court  of  Equity  has  power 
to  cancel  instruments  which  are  void  by  reason  of  fraud  in 
their  inception,  it  has  no  jurisdiction  to  cancel  instruments 
which  have  ceased  to  be  binding  since  their  execution;  second, 
that  while,  at  the  instance  of  the  insured,  a  Court  of  Equity 
may  compel  an  insurance  company  to  reinstate  a  canceled 
contract,  equity  will  not  interfere  to  enforce  a  forfeiture.  In 
passing  upon  the  demurrer  Judge  Shipman  said:  "Upon  the 

279 


THE  LAW  OF  LIFE  INSURANCE 

first  proposition  it  is  true  that  a  Court  of  Equity  has  not,  or 
will  not  exercise,  jurisdiction  to  cancel  a  contract  merely 
because  it  has  become  void  or  inoperative  by  reason  of  some 
fact  which  has  taken  place  since  its  execution.  Such  an 
exercise  of  power  would  give  a  Court  of  Equity  concurrent 
jurisdiction  with  the  courts  of  law  over  all  contracts  which 
one  contracting  party  may  allege  to  have  been  broken  by  the 
other.  But,  while  relief  from  the  consequences  of  fraud 
is  peculiarly  the  province  of  a  Court  of  Equity,  it  has  not  re- 
fused to  cancel  contracts  which  have  been  performed,  or 
which  have  become  inoperative,  when  the  special  circum- 
stances of  a  case  rendered  it  unjust  or  oppressive  that  the 
contract  should  be  an  outstanding  claim  against  the  plaintiff. 
The  reasonable  rule  is  that  a  Court  of  Equity  will  exercise 
its  power  of  setting  aside  contracts  for  defects  not  apparent 
on  their  face,  although  such  defects  arose  after  the  execution 
of  the  contracts,  in  cases  where  the  special  circumstances 
render  it  inequitable  or  unjust,  or  a  hardship,  to  compel 
the  plaintiff  to  await  a  suit  at  law  at  the  instance  of  the  other 
party.  Chancellor  Kent  was  inclined  to  think  in  Hamilton 
vs.  Cummings  (1  Johnson's  Ch.,  517)  that  'a  Court  of  Equity 
had  jurisdiction  to  set  aside  a  bond  or  other  instrument, 
whether  the  instrument  was  void  for  matter  appearing  on 
its  face,  or  from  the  proofs,'  and  that  these  assumed  distinc- 
tions were  not  well  founded.  He  says:  'Perhaps  all  the 
cases  may  be  reconciled  on  the  general  principle  that  the 
exercise  of  this  power  is  to  be  regulated  by  sound  discretion, 
as  the  circumstances  of  the  individual  case  may  dictate,  and 
that  the  resort  to  equity,  to  be  sustained,  must  be  expedient, 

280 


THE   LAW  OF  LIFE  INSURANCE 

either  because  the  instrument  is  liable  to  abuse  from  its  nego- 
tiable nature,  or  because  the  defense,  not  arising  on  its  face, 
may  be  difficult,  or  uncertain  at  law,  or  from  some  other 
special  circumstances  peculiar  to  the  case,  and  rendering  a 
resort  here  highly  proper,  and  clear  of  all  suspicion  of  any 
design  to  promote  expense  and  litigation.  If,  however,  the 
defect  appears  on  the  bond  itself,  the  interference  of  this 
court  will  depend  upon  the  question  of  expediency,  and  not 
on  a  question  of  jurisdiction.'  Second,  it  is  true  that  Courts 
of  Equity  will  not  aid  to  enforce  a  forfeiture,  or  to  divest  an 
estate  for  breach  of  covenant  or  condition  subsequent,  unless, 
perhaps,  under  extraordinary  circumstances.  When  an 
estate  has  been  forfeited,  or  when  a  pecuniary  penalty  has 
been  incurred,  by  reason  of  the  happening  of  a  condition 
subsequent,  or  of  the  breach  of  a  covenant,  there  is  usually 
an  immediate  remedy  at  law  to  regain  possession  of  the  estate 
or  to  recover  the  penalty.  There  being  such  a  remedy,  equity 
will  not  interfere.  The  great  principle  is  that  equity  will 
not  assist  in  the  recovery  of  a  penalty  or  forfeiture  when  the 
plaintiff  may  proceed  at  law  to  recover  it.  In  this  case  there 
is  no  estate  to  be  regained,  there  is  no  sum  in  damages  to  be 
recovered.  The  insured  is  still  living,  and  a  cancellation  of 
the  contract  is  the  only  result  which  is  to  be  attained.  The 
plaintiff  has  now  no  remedy  at  law,  and  unless  it  can  resort 
to  a  Court  of  Equity  it  must  wait  and  become  a  defendant  at 
the  future  suit  of  the  holder  of  the  policy.  When  such  a  suit 
will  be  commenced  is  a  matter  of  uncertainty.  The  rule  is 
not  applicable  to  the  cancellation  of  a  policy  of  insurance 
upon  the  life  of  a  living  person."  The  Court  then  reasons 

281 


THE  LAW  OF  LIFE  INSURANCE 

that  the  relief  should  be  given  because  of  its  expediency  and 
in  order  to  be  just  to  the  other  policy-holders;  that  the  founda- 
tion of  insurance  is  the  law  of  average,  and  if  the  insured 
are  permitted  knowingly  to  indulge  in  practises  that  noto- 
riously invite  disease,  the  investment  of  other  insured  persons 
is  jeopardized.  The  Court  quotes  the  language  of  Justice 
Bradley,  that  '"the  assured  parties  are  associates  in  a  great 
scheme.  The  associated  relation  exists  whether  the  com- 
pany be  a  mutual  one  or  not.  Each  is  interested  in  the 
engagement  of  all,  for  out  of  the  co-existence  of  many  risks 
arises  the  law  of  average,  which  underlies  the  whole  busi- 
ness.' The  objection  that  the  company  has  already  exercised 
its  option  of  declaring  the  forfeiture  is  disposed  of  by  the 
answer  that  it  is  important  to  the  company  to  know  before 
the  death  of  the  assured  whether  it  has  made  an  error  in  this 
action  or  not;  that  neither  party  should  be  left  in  doubt  during 
a  series  of  years  as  to  his  or  its  pecuniary  rights  in  the  policy." 
In  a  later  case  in  the  United  States  Circuit  Court  of  North 
Carolina  (Insurance  Company  vs.  Bear,  26  Fed.  Rep.,  582) 
it  was  sought  to  cancel  a  policy  upon  the  same  ground  — 
the  intemperance  of  the  assured,  the  latter  being  still  living. 
The  Court,  citing  Insurance  Company  vs.  Bailey  (supra), 
held  that  a  Court  of  Equity  would  not  set  aside  a  policy  of  life 
insurance  during  the  life  of  the  assured  on  the  ground  that  it 
had  been  rendered  void  by  something  not  appearing  on  the 
face  of  the  policy,  and  which  could  be  proved  by  extrinsic 
evidence;  that  if  such  power  existed,  it  was  not  a  case  for 
the  ordinary  exercise  of  the  discretionary  power  of  the  Court 
of  Equity  to  order  a  cancellation,  because  the  assured,  who  is 

282 


THE  LAW  OF  LIFE  INSURANCE 

now  intemperate,  may  reform  and  live  out  the  ordinary 
expectation  of  life. 

In  view  of  these  conflicting  decisions,  neither  of  them  by 
a  court  of  the  highest  authority,  the  question  of  the  exercise 
of  this  equitable  power  must  be  regarded  as  still  an  open 
one. 

A  suit  upon  a  life  policy  is  an  especially  difficult  one  to 
defend,  for  several  reasons.  In  the  first  place,  there  exists 
in  this  country  a  very  general  prejudice  against  corporations, 
which  inclines  a  jury  to  view  with  favor  any  claim  by  an 
individual  against  one  of  them.  Then  the  plaintiff  is  usually 
a  widow  or  some  other  dependent  of  the  deceased,  and  the 
contrast  is  strongly  drawn  by  counsel  arguendo  between  her 
poverty  and  the  heaped-up  millions  of  the  defendant,  the 
corresponding  liabilities  of  the  latter  being  carefully  kept  in 
the  background.  Another  consideration  which  is  enter- 
tained, but  not  put  forward  so  prominently,  is  that  a  verdict 
for  the  plaintiff  will  take  from  the  treasury  of  what  is  generally 
a  distant  company,  chartered  by  another  State,  a  sum  of 
money  which  will  be  invested  or  expended  by  a  neighbor  of 
the  jurors,  to  the  benefit  of  the  trade  of  their  vicinage,  and 
consequently  of  themselves.  Another  difficulty  for  the 
defense  is  that  the  most  important  evidence  is  often  that  of 
the  attending  physicians,  and  this  is  unattainable  by  reason  of 
the  statutes  forbidding  them  to  testify  to  any  knowledge 
acquired  through  their  professional  attendance,  as  well  as  by 
reason  of  their  own  sense  of  the  obligations  of  their  profes- 
sional honor.  And  to  these  considerations  must  be  added 
another  of  a  much  higher  character,  that  natural  human 

283 


THE  LAW  OF  LIFE  INSURANCE 

instinct  which  leads  us  all  to  speak  well,  and  to  endeavor  to 
think  well,  of  the  dead.  The  fall  of  the  curtain  upon  a 
human  life  covers  at  the  same  time  his  faults  and  vices,  and 
adds  enormously  to  the  difficulty  of  establishing  to  the  satis- 
faction of  a  jury  facts  which  are  notorious,  but  which  blacken 
his  memory.  The  very  neighbors  who,  during  a  man's  life, 
denounce  him  as  a  worthless  sot,  will,  when  called  as  wit- 
nesses in  a  suit  upon  a  policy  on  his  life,  reluctantly  admit 
that  he  perhaps  on  rare  occasions  drank  to  excess,  but  not  to 
an  extent  to  impair  his  usefulness  or  affect  his  health.  So 
when  a  suicide  takes  place  the  associates  of  the  deceased  at 
once  begin  to  think  that  they  had  previously  noticed  symp- 
toms of  aberration  of  mind,  quite  sufficient  to  justify  a 
strong  suspicion  of  his  sanity,  although  no  such  idea  had  ever 
occurred  to  them  before  the  catastrophe. 

The  late  Rufus  Choate,  one  of  the  ablest  and  most  expe- 
rienced, as  well  as  one  of  the  most  successful  jury  lawyers 
that  this  country  has  ever  seen,  was  accustomed  to  say  that 
God  Almighty  knew  everything  except  what  verdict  a  petit 
jury  would  render  upon  a  given  state  of  facts.  The  counsel 
for  the  defense  in  an  insurance  case  knows  only  too  well 
what  verdict  the  jury  is  almost  certain  to  render,  if  allowed 
to  follow  its  own  inclinations,  and  hence  concludes  that  the 
proper  time  to  contest  a  claim  upon  a  policy  is,  if  you  will 
pardon  the  Hibernicism,  before  it  is  issued. 

As  you  have  doubtless  discovered,  I  have  stated  to  you 
only  a  few  general  principles  and  leading  cases  in  the  Law  of 
Life  Insurance,  which  is  all  I  expected  to  do  even  if  I  had 
ventured  to  assume  that  I  could  have  given  a  more  complete 

284 


THE  LAW  OF  LIFE  INSURANCE 

abstract  of  it.  But,  as  Chief  Justice  Abbott  wisely  remarked, 
in  summing  up  the  case  of  Montrio  vs.  Jeffreys  (2  Carrington 
&  Payne,  116),  "No  attorney  is  bound  to  know  all  the  law 
—  God  forbid  that  it  should  be  imagined  that  an  attorney  or 
a  counsel  or  even  a  judge  is  bound  to  know  all  the  law." 
The  volumes  of  text-books  and  reports  have  multiplied  enor- 
mously since  his  time,  and  there  is  still  less  ground  for  such  an 
imagination  at  present.  But  I  have,  I  hope,  said  enough  to 
interest  you  in  the  subject,  and  to  indicate  the  lines  of  study 
to  be  pursued.  Life  Insurance  Law  is  practically  the  growth 
of  the  last  twenty  years,  for  only  within  that  time  has  the 
spread  of  Life  Insurance  been  so  great  as  to  require  much 
consideration  from  the  courts,  and  many  important  questions 
are  still  undetermined,  while  many  more  are  certain  to  arise 
and  demand  judicial  decision. 

The  tendency  of  the  age  is  towards  specialism.  In  both 
law  and  medicine  this  tendency  is  especially  marked,  and  if, 
as  I  presume  will  be  the  case  with  most,  if  not  all,  of  you, 
you  enter  upon  the  practise  of  your  profession  in  any  of  the 
great  centres  of  wealth  and  population,  you  will  find  it  neces- 
sary, in  order  to  be  successful,  to  devote  most  of  your  atten- 
tion and  study  to  some  particular  branch  of  the  law.  In 
making  the  selection  of  the  object  of  your  life's  devotion,  I 
trust  that  these  lectures  may  have  their  weight  in  inducing 
some  of  you  to  turn  your  minds  towards  the  Law  of  Life  Insur- 
ance. In  that  trust  I  commit  the  subject  to  your  consid- 
eration. 


285 


SPEECH  AT  BOSTON,  MASS. 

AT  THE  DINNER  OF  THE  AGENTS  OE  THE  MUTUAL 

LIFE  INSURANCE  COMPANY  OF  NEW  YORK 

AT  BOSTON,  MASS.,  ON  JANUARY 

25-TH,  1893 


SPEECH    AT    BOSTON,  MASS. 

IT  gives  me  great  pleasure  to  appear  before  you  this  even- 
ing, and  I  congratulate  myself  that  this  meeting  takes 
place  at  a  season  of  the  year  when  all  the  executive  officers  are 
busily  engaged  in  studying  the  results  already  accomplished, 
and  making  preparations  for  the  future,  so  that  they  were 
obliged  to  delegate  to  me  the  very  agreeable  duty  of  repre- 
senting the  Company  on  this  occasion.  And  it  is  particu- 
larly agreeable  to  me  that  my  first  appearance  in  that  capacity 
should  be  made  here.  Massachusetts  has  always  been  one 
of  the  foremost  States  of  the  Union,  her  sons  have  been 
prominent  and  successful  in  every  walk  of  life,  and  the  work 
which  has  been  done  on  behalf  of  the  Mutual  Life  by  the 
gentlemen  assembled  shows  that  their  energy  and  ability  is 
what  is  to  be  expected  from  the  sons  of  the  old  Common- 
wealth. And  if  I  may  be  allowed  to  refer  to  personal  matters, 
both  my  mother  and  my  wife  were  born  in  Boston,  so  the 
city  and  State  are  very  dear  to  me.  As  a  small  boy,  I  used 
to  accompany  my  mother  on  her  annual  Thanksgiving  visits 
to  her  father's  house,  on  the  corner  of  Summer  and  Arch 
Streets,  then  a  fashionable  residence  quarter,  and  the  change 
in  the  city  since  that  time  is  marvelous  indeed.  There 
were  then  no  Public  Gardens,  the  water  in  the  Back  Bay 

289 


SPEECH  AT  BOSTON,  MASS. 


still  flowed  to  and  fro  unhampered,  and  the  stately  residences 
of  Commonwealth  Avenue  and  Beacon  Street,  and  the  great 
warehouses  and  roomy  stores  which  adorn  the  business 
sections,  were  not  even  dreamt  of  in  the  distant  future.  The 
increase  of  population,  of  wealth,  of  business,  of  resources  of 
every  character,  has  been  enormous,  and  you  may  congratu- 
late yourselves  on  having  a  field  of  action  so  capable  of  yield- 
ing abundant  fruit. 

This  occasion  is  one  of  especial  interest  in  view  of  the 
fact  that  the  Company  has  nearly  completed  the  first  fifty 
years  of  its  existence.  To  recite  its  growth  from  the  receipt 
of  the  first  premium  to  the  magnificent  accumulation  of 
assets  which  we  see  to-day  would  be  but  to  repeat  an  oft-told 
tale,  doubtless  as  familiar  to  you  as  it  is  to  me;  but  the  fact 
that  the  growth  has  been  so  great  shows  us  that  there  is 
no  conceivable  limit  to  what  may  be  attained  in  the  future. 
No  man  can  undertake  to  say  when  its  usefulness  shall  cease, 
or  how  the  broad  wide-spreading  stream  of  its  beneficence 
can  ever  be  stayed.  Yet  at  this  time  it  is  becoming  that  we 
should  rejoice  over  the  past  and  make  plans  for  the  future. 
Since  its  first  establishment  in  the  early  days  of  Jewish  his- 
tory, the  year  of  Jubilee  has  been  one  of  balancing  accounts, 
of  estimating  results,  and  of  rejoicing  over  what  has  been 
done.  Church  and  State  alike  from  time  to  time  have  cele- 
brated such  occasions  with  every  manifestation  of  joy,  and 
with  all  the  pride  and  pomp  which  circumstances  permitted. 
Surely  it  is  fitting  that  a  great  institution  which  has  benefited 
so  many  thousands  of  families,  which  has  provided  food 
for  the  widow,  and  education  for  the  children,  in  many  cases 

290 


SPEECH  AT  BOSTON,  MASS. 


sorely  needed,  which  has  encouraged  thrift  and  prudence, 
and  enabled  the  man  of  small  means  to  obtain  the  advantage 
of  the  most  favorable  investments  under  the  guidance  and 
advice  of  the  most  experienced  and  successful  financial  and 
business  men,  which  to-day  holds  in  its  hands  the  future  of 
so  many  thousands  of  individuals,  and  does  so  with  the  as- 
surance of  absolute  safety  and  reliability  —  such  an  insti- 
tution may  well  celebrate  its  Jubilee  and  call  upon  the  world 
to  celebrate  with  it.  We  honor  also  in  this  year  the  memory 
of  Christopher  Columbus,  and  it  is  right  that  we  should  do 
so,  for  if  he  had  failed  to  discover  America,  the  Mutual  Life 
might  have  been  established  elsewhere,  but  among  all  the 
grand  results  of  that  discovery,  and  the  great  institutions 
which  have  been  developed  on  the  American  Continent,  there 
is  none  which,  considering  its  feeble  beginning,  and  its  sturdy 
age,  deserves  more  of  our  admiration  and  respect  than  the 
grand  old  Company  which  we  serve  and  love. 

You,  gentlemen,  are  practically  the  army  advancing  into 
the  enemies'  country,  or  perhaps  I  should  more  properly  say, 
the  reapers  going  forth  to  gather  the  harvest,  while  we  at 
the  home  office  furnish  the  tools  and  the  supplies  which  are 
needed  to  keep  you  in  the  field  and  to  enable  you  to  do  the 
work.  You  are  all  doubtless  kept  well  advised  by  the  effi- 
cient General-Agent  of  this  District,  the  courteous  gentle- 
man and  genial  good  fellow  who  is  our  host  to-night,  how 
actively  and  thoroughly  the  Home  Office  performs  its  part, 
and  how  constant  is  the  effort  to  furnish  every  incentive  and 
every  needed  supply  to  the  men  at  the  front.  My  own  close 
personal  relations  with  the  officers  may  perhaps  make  my 

291 


SPEECH  AT  BOSTON,  MASS. 


praise  of  them  seem  a  matter  of  course,  but  I  cannot  allow 
this  opportunity  to  pass  without  expressing  my  admiration 
and  affection  for  the  President  of  the  Company,  and  for  the 
clear,  keen  intellect,  the  untiring  industry,  the  dauntless 
energy  and  the  warm  heart  which  Mr.  McCurdy  brings  to 
the  discharge  of  his  duties,  and  to  which  is  due  the  marvelous 
increase  of  the  Company's  business  during  the  last  eight  years. 
Among  the  tools  with  which  you  have  been  supplied  are 
two  new  forms  of  policies,  the  so-called  five  per  cent  deben- 
ture, and  the  continuous  instalment,  both  of  them  novelties 
of  high  promise  which  should  aid  materially  to  make  the 
business  of  this  semi-centennial  year  enormous  in  amount. 
I  assume  that  you  have  all  read  the  circulars  which  have  been 
issued  in  regard  to  these  new  plans,  and  are  familiar  with 
their  general  characteristics,  so  that  it  is  not  necessary  for  me 
to  discuss  them  in  minute  detail.  But  the  important  point 
to  be  observed  in  the  debenture  policy  is,  that  it  is  in  effect 
a  five  per  cent  bond  for  twenty  years,  that  is,  the  beneficiary 
of  such  a  policy,  upon  the  death  of  the  insured,  holds  a  bond 
which  is  as  reliable  and  as  certain  of  payment  as  that  of  any 
Government,  State,  Municipality,  or  Corporation  in  the  wide 
world  which  has  twenty  years  to  run  at  what  is  now  the  high 
rate  of  interest  of  five  per  cent  per  annum,  and  is  payable 
at  par  at  the  end  of  that  time.  The  advantage  to  the  in- 
sured is  that  should  he  survive  the  distribution  period  the 
application  of  the  surplus  then  credited  to  him  to  the  pur- 
chase of  an  annuity  would  go  far  to  reduce,  if  not  altogether 
extinguish,  future  payments  on  the  policy.  And  there  is 
another  of  much  greater  importance.  With  my  long  ex- 

292 


SPEECH  AT  BOSTON,  MASS. 


perience  in  the  Company's  service,  and  my  knowledge  of  the 
embarrassment  often  caused  by  the  death  of  beneficiaries, 
the  necessity  of  going  to  the  expense  of  appointing  adminis- 
trators or  guardians,  or  of  probating  wills,  in  order  to  transfer 
an  interest,  I  can  thoroughly  appreciate  the  immense  saving 
and  convenience  caused  by  making  the  interest  of  the  nominee 
contingent  on  his  surviving  the  nominator.  The  latter  may 
have  selected,  for  example,  his  wife  as  his  first  choice,  as  most 
good  husbands,  and  it  is  to  be  hoped  all  Massachusetts  hus- 
bands, would  do,  and  in  the  event  of  her  death  during  his 
lifetime,  instead  of  probating  her  will  or  administering  on 
her  estate,  he  has  only  to  file  with  the  Company  an  affidavit 
of  the  fact,  and  nominate  another  person  to  receive  the  benefit 
of  his  forethought.  Again  death  may  defeat  his  intention, 
and  again  he  has  only  to  file  his  affidavit  and  his  nomination. 
The  simplicity  of  this  method,  its  avoidance  of  the  annoyance 
of  asking  for  releases  from  next  of  kin,  and  of  any  expense  or 
trouble  whatever,  is  a  point  which  should  commend  it  strongly 
to  the  insuring  public.  In  brief,  it  enables  a  man  to  provide 
with  absolute  certainty  for  the  future  of  any  one  dependent 
on  him,  and  yet  empowers  him  to  transfer  the  fund  to  another 
when  his  bounty  is  no  longer  needed  by  the  one  for  whom 
it  was  intended.  At  the  same  time  these  policies  will  be 
assignable  or  available  as  collateral  security.  I  have  no 
doubt  that  the  interest  of  the  nominee  would  be  held  to  be 
of  such  a  character  that  he  could  not  be  deprived  of  it  without 
his  own  consent,  but  that  an  assignment  by  nominator  and 
nominee  together  would  be  valid  is  to  my  mind  beyond 
question. 


SPEECH  AT  BOSTON,  MASS. 


The  continuous  instalment  policy  possesses  advantages  of 
another  character.  Many  a  prudent  man  hesitates  about 
insuring  his  life,  because  he  is  not  at  all  sure  that  his  wife  or 
children  would  be  able  to  use  to  advantage  any  large  sum  of 
money  coming  to  her  or  them  at  his  decease,  and  fears  that 
through  their  incapacity  or  the  possible  frauds  or  defalca- 
tions of  executors  or  trustees  the  result  of  his  thrift  and  econ- 
omy may  be  dissipated  or  lost  by  unwise  investment.  The 
old  form  of  policy  payable  in  instalments  did  not  altogether 
relieve  this  apprehension,  for  under  it  the  beneficiary  would 
receive  payment  for  a  certain  number  of  years  and  then  the 
income  would  cease,  at  a  time  when  habits  had  been  formed 
and  a  mode  of  life  become  customary,  based  upon  regular 
receipts.  But  by  the  plan  now  in  question  these  instalments 
are  continued  throughout  the  life  of  the  beneficiary,  and  the 
dying  husband  who  has  made  this  provision  for  his  wife  has 
the  satisfaction  of  knowing  that  should  she  survive  him  for 
forty  or  any  number  of  years,  she  has  an  assured  income  for 
all  that  time.  I  use  the  word  assured  deliberately,  for  it  is 
not  so  many  years  since  the  failure  of  a  railroad  which  had 
been  a  favorite  investment  with  Massachusetts  merchants 
involved  so  many  estates  and  so  many  families  in  serious 
embarrassment.  Here  you  have  to  offer  to  your  customers  a 
security  which  is  absolute  —  in  which  there  is  no  possibility 
of  a  shrinkage  of  value,  or  of  the  passing  of  a  dividend,  which 
will  be  always  at  par,  if  not  at  a  premium,  and  on  which  the 
payments  will  be  made  as  they  become  due  with  the  regu- 
larity of  the  sweep  of  the  solar  system  around  the  sun.  These 
policies  are  also  assignable  during  the  hie  of  the  insured 

294 


SPEECH  AT  BOSTON,  MASS. 


with  his  consent,  but  it  is  contemplated  that  the  instalments 
shall  be,  and  may  be  made,  absolutely  inalienable  by  the 
beneficiaries. 

I  have  not  thought  it  necessary  to  refer  to  the  numerous 
advantages  which  The  Mutual  Life  offers  over  all  its  com- 
petitors, and  to  the  many  other  kinds  of  policies  designed  to 
meet  every  taste  and  fancy,  and  every  desirable  method  of 
insurance  and  investment.  In  the  language  of  the  late  Judge 
Kent,  when  a  young  counsel  commenced  his  argument  with 
an  historical  sketch  of  the  origin  and  growth  of  the  Common 
Law,  "The  Court  must  be  presumed  to  know  something," 
and  I  do  not  venture  to  undertake  to  instruct  you  gentlemen 
in  subjects  on  which  you  are  doubtless  far  better  informed 
than  myself.  But  as  the  two  forms  of  policies  I  have  men- 
tioned are  entirely  new,  I  have  called  your  attention  to  what 
seem  to  be  their  special  features. 

These  are  the  tools  which  we  have  forged  and  prepared, 
and  which  we  expect  you  to  use  to  the  mutual  benefit  of  the 
Company,  of  the  insured  and  their  families,  and  of  your- 
selves. 

And  in  speaking  of  the  business  to  be  done,  it  seems  to  me 
proper  to  refer  to  the  question  recently  mooted  as  to  the 
propriety  of  limiting  the  transactions  of  great  corporations. 
There  is  undoubtedly  a  growing  feeling  among  the  people 
that  some  bounds  must  be  set  to  the  growth  of  corporate 
capital  in  the  near  future,  and  some  restrictions  placed  upon 
the  amount  of  their  accumulations.  One  remedy  has  been 
proposed  by  that  distinguished  actuary,  Mr.  D.  P.  Fackler, 
who  advises  that  the  assets  of  any  one  company  be  limited 

295 


SPEECH  AT  BOSTON,  MASS. 


by  law  to  two  hundred  millions  of  dollars,  and  that  any  com- 
pany which  has  accumulated  that  amount  shall  be  prohibited 
from  writing  any  new  policies.  This,  with  all  respect  to  the 
high  authority  by  whom  it  was  promulgated,  seems  to  me 
crude  and  unsatisfactory  if  we  consider  the  necessary  conse- 
quence of  such  action.  The  company  which  had  reached 
this  point  would  cease  to  do  new  business,  yet  its  assets  would 
continue  in  the  nature  of  things  to  increase  for  years,  then 
through  an  enlarged  death  rate  and  the  absence  of  new  life 
slowly  to  diminish,  until  the  company  were  at  length  at 
liberty  to  endeavor  to  replenish  its  emptying  coffers.  But 
by  that  time,  a  species  of  dry-rot  would  have  set  in;  the  offi- 
cers, accustomed  only  to  the  business  of  a  trust  company  or 
a  bank,  would  have  forgotten  how  to  appeal  to  the  insuring 
public,  the  agency  system  would  have  fallen  into  "  innocuous 
desuetude,"  to  quote  a  phrase  not  long  ago  famous,  and 
would  have  to  be  reconstructed  at  a  large  expense.  On  the 
other  hand,  the  proposal  to  limit  the  insurance  which  any  one 
company  can  write  to,  say  one  thousand  millions,  is  open  to 
no  reasonable  objection.  This  was  first  proposed  by  Mr. 
Beers  while  President  of  the  New  York  Life  Insurance  Com- 
pany, and  the  only  criticism  I  have  seen  upon  it  is  the  caustic 
remark  that  he  in  effect  wanted  somebody  to  hold  him  to 
prevent  him  from  going  too  far  in  his  rivalry  with  other 
companies.  But  this  does  not  seem  to  me  quite  fair.  What 
he  really  wanted  was  that  somebody  should  hold  the  other 
fellow  and  prevent  him  from  getting  too  far  ahead.  Such  a 
limitation  upon  the  amount  of  business  would  at  once  put  an 
end  to  the  present  unseemly  strife  about  agents,  commissions, 

296 


SPEECH  AT  BOSTON,  MASS. 


and  rebates,  which  has  been  and  is  such  an  injury  to  the 
business  of  life  insurance  generally  and  to  the  great  competing 
companies  especially,  for  they,  knowing  that  the  end  was 
near  at  hand,  would  have  no  object  in  hastening  its  approach. 
But  the  limitation  of  the  amount  of  assets  would  make  it  to 
the  interest  of  each  to  attain  that  limit  at  the  earliest  possible 
moment  from  premiums  on  new  policies  which  would  con- 
tinue in  the  future,  and  so  tend  to  strengthen  to  an  unbearable 
degree,  for  some  years  to  come,  the  present  competition. 
This  we  at  least  are  anxious  to  avoid,  and  will  willingly  accept 
the  proposed  limitation  of  insurance  in  force  to  one  thousand 
millions  of  dollars. 

Nor  need  you  fear  that  such  action  would  seriously  restrict 
your  labors.  To  keep  that  amount  in  force  upon  our  books, 
to  replace  the  deaths,  the  surrenders  and  the  lapses,  we  should 
have  to  write  every  year  from  sixty  to  seventy  millions  of 
new  business,  to  say  nothing  of  the  amount  yet  to  be  written 
before  we  reach  the  limit.  So  you  will  still  be  required  to 
use  every  effort  to  increase  your  transactions  and  to  make 
this  semi-centennial  year  memorable  in  the  history  of  the 
Company  for  the  work  you  do. 

And  so,  speaking  for  the  President  and  in  his  name,  I  urge 
you  on  to  your  work,  and  wish  you  God-speed. 

The  Alpine  climber  in  the  Bernese  Oberland  sees  before 
him  a  towering  mountain  summit  which  seems  to  kiss  the 
heavens  and  be  enveloped  in  the  clouds.  Yet  when  after 
long  and  painful  effort  he  has  reached  his  point,  it  is  only  to 
find  another  peak  rising  still  higher,  and  calling  upon  him  for 
fresh  exertion.  So  your  efforts  can  never  cease.  The  fact 

297 


SPEECH  AT  BOSTON,  MASS. 


that  through  your  aid  the  Company  wrote  so  many  millions 
of  insurance  last  year  means  that  this  year  we  intend  to 
write  much  more,  and  the  amount  of  achievement  is  only  the 
standard  by  which  to  measure  the  expected  achievement  of 
the  future.  The  law  of  life,  the  law  of  nature,  requires  con- 
stant progress  or  regress.  No  human  being  and  no  human 
institution  can  stand  still, —  it  must  either  advance  or  retreat, 
and  for  us  only  advance  is  possible  or  conceivable.  It  re- 
mains for  you  and  for  me,  and  especially  for  you,  so  to  bear 
our  part  in  the  great  work  which  we  have  undertaken  that 
when  our  Centennial  year  shall  dawn,  what  seems  to 
us  the  lusty  manhood  may  appear  by  comparison  to  the  then 
representatives  of  the  Grand  Old  Company  only  the  feeble 
childhood  of  the  infant,  puny  indeed  but  of  vast  potentiality, 
born  fifty  years  ago. 


298 


SPEECH   AT   SAVANNAH,    GA. 

MADE  AT  A  DINNER  GIVEN  BY  THE  BOARD  OF 
TRADE  OF  SAVANNAH,  FEBRUARY  STH,  1893. 


"THE  UNITED  STATES" 

I  PRESUME  it  is  expected,  or  if  it  is  not  expected,  it  is  cer- 
tainly most  natural,  that  any  stranger  speaking  in  your  city 
on  any  subject  should  preface  his  remarks  by  the  expression 
of  his  admiration  for  the  city  itself.  Its  broad  streets  and 
beautiful  squares,  its  parks  and  drives,  first  impressed  them- 
selves most  pleasantly  upon  me  in  a  brief  visit  which  I  made 
here  about  eleven  years  ago,  and  the  charming  recollections 
of  Savannah  which  I  entertained  have  been  greatly  enhanced 
by  the  observations  now  made,  and  by  the  courteous  hos- 
pitality which  I  have  enjoyed.  The  growth  of  the  city  in  the 
interval  to  which  I  have  referred  is  obviously  very  great,  and 
I  congratulate  you  that  the  increase  of  business,  of  wealth 
and  resources  of  every  character,  is  of  corresponding  mag- 
nitude and  argues  so  strongly  for  a  prosperous  future.  I 
have  not  thought  it  necessary  to  quote  from  gazetteers  and 
encyclopedias  statistics  with  which  you  are  doubtless 
familiar,  to  prove  to  you  how  great  you  are;  but  the  advance 
that  has  been  already  made  since  De  Soto  wandered  through 
the  mountains  of  Georgia,  or  since,  in  comparatively  recent 
times,  Oglethorpe  founded  his  little  colony  here,  is  the  best 
earnest  of  what  may  be  expected  in  the  future.  I  need 
scarcely  add  how  much  I  feel  honored  by  the  invitation  to 

301 


SPEECH  AT  SAVANNAH,  GA. 


attend  this  dinner,  and  how  much  gratification  it  affords  me 
to  be  present. 

I  am  asked  to  respond  to  the  toast  of  "The  United  States," 
and  feel  somewhat  appalled  at  the  magnitude  of  the  task 
set  before  me,  as  one  to  which  little  justice  can  be  done  in  the 
brief  time  which  can  be  given  to  an  after-dinner  speech. 
Thank  God  that  they  are  now  in  fact  and  in  truth  the  United 
States,  and  that  the  differences  which  once  tended  to  sever 
them  have  vanished  forever.  It  is  a  somewhat  curious 
coincidence  that  some  days  ago,  and  before  I  had  even  heard 
of  this  dinner,  I  was  so  struck  by  an  article  in  the  Atlanta 
Constitution  of  December  23d,  bearing  upon  this  point,  that 
I  cut  it  out  for  my  scrap-book.  It  was  in  reference  to  the 
rosy  dreams  entertained  at  intervals  by  our  British  cousins, 
that  the  bonds  issued  by  the  late  Confederacy  will  some  day 
be  paid,  and  in  the  hope  that  it  is  not  familiar  to  you  I  ven- 
ture to  quote  a  portion  of  it.  "It  is  purely  visionary, —  this 
expectation  that  any  of  the  Confederate  bonds  will  ever  be 
redeemed.  The  federal  government  will  not  redeem  them; 
the  Confederacy's  ghost  is  not  able  to  attend  to  business,  and 
the  new  South  is  forced  by  circumstances  over  which  she  has 
no  control  to  draw  the  line  between  sentiment  and  taxes. 
The  Confederates  had  to  accept  the  fortune  of  war,  and 
their  friends  who  aided  and  abetted  them  will  have  to  do 
likewise. 

"The  holders  of  Confederate  bonds  in  England  are  rich 
men  with  a  speculative  bias.  If  they  desire  to  make  money 
out  of  the  South  they  can  easily  do  it  in  the  right  way.  They 
will  find  opportunities  for  investments  here  that  will  yield 

302 


SPEECH  AT  SAVANNAH,  GA. 


them  surer,  larger,  and  quicker  returns  than  they  can  reap 
anywhere  else.  Let  them  withdraw  their  capital  from  the 
South  American  countries,  where  it  is  always  endangered  by 
revolutionary  upheavals,  and  invest  it  in  the  rising  industries 
of  the  South.  If  they  will  do  this  they  will  bless  their  Con- 
federate bonds  and  frame  them  for  their  heirs  with  the  state- 
ment that  these  souvenirs  of  a  lost  cause  drew  them  to  this 
favored  region  where  they  multiplied  their  millions.  There 
is  no  money  to  be  made  out  of  the  late  Confederacy,  but  there 
is  plenty  of  it  to  be  made  out  of  the  States  that  composed  it 
—  not  by  digging  up  ancient  history,  but  by  judicious 
investments  in  what  is  destined  to  be  the  richest  section  of 
the  Union." 

This  view  of  the  situation  is  unquestionably  correct,  and 
it  is  hoped  that  the  advice  will  be  accepted  in  the  kindly 
spirit  in  which  it  is  given. 

I  would  that  I  had  the  silver  tongue  of  your  eloquent  and 
lamented  Grady  to  do  justice  to  this  subject.  New  York 
has  not  yet  forgotten  the  thrill  of  enthusiasm  aroused  by  the 
message  which  he  brought  from  the  new  South  and  is  only  too 
glad  to  work  heart  and  hand  with  her  in  developing  the  pros- 
perity of  the  entire  country.  The  old  fable  of  JEsop  has  not 
ceased  to  have  force  and  meaning  for  later  generations.  Hearts, 
hands,  digestion,  and  brains  must  all  work  together  in  har- 
mony to  accomplish  any  result. 

And  the  elements  at  our  hands  for  use  are  incalculable. 
Statisticians  estimate  that  the  agricultural  products  of  this 
country  can  feed  one  thousand  millions  of  people.  The 
Comstock  lode  alone  in  1877  produced  over  thirty-seven 

303 


SPEECH  AT  SAVANNAH,  GA. 


millions  of  dollars:  twelve  little  holes  in  the  side  of  a  moun- 
tain yielded  more  wealth  that  year  than  three  million  eight 
hundred  and  ninety  thousand  acres  planted  to  corn.  In 
coal,  in  natural  deposits  of  every  character,  we  have  the 
advantage  of  the  known  world,  and  as  our  population  grows, 
as  it  will  grow,  sufficiently  large  to  make  proper  use  of  them, 
Mr.  Gladstone's  prophecy  will  be  fulfilled  when  he  said, 
referring  to  this  country,  that  "She  will  probably  become 
what  we  are  now,  the  head  servant  in  the  great  household  of 
the  world,  the  employer  of  all  the  employed,  because  her 
service  will  be  the  most  and  the  ablest."  It  has  been  well 
written,  "If  it  is  not  unreasonable  to  believe  that  our  agri- 
cultural resources  alone,  when  fully  developed,  are  capable 
of  feeding  one  thousand  million,  then  surely,  with  our  agri- 
cultural and  mining  and  manufacturing  industries  all  fully 
developed,  the  United  States  can  sustain  and  enrich! such  a 
population.  Truly  has  Matthew  Arnold  said,  'America 
holds  the  future!  " 

I  had  the  fortune  to  pick  up  in  England  last  summer  a 
book  entitled,  "Uncle  Sam  at  Home,"  a  very  laudatory  and 
appreciative  description  of  this  country,  written  by  a  visitor 
to  us.  He  sees  clearly  our  many  natural  advantages  and 
gives  many  reasons  for  our  growth,  and  among  them  one 
which  is  so  consonant  with  our  own  views  that  I  venture  to 
quote  it:  "Commerce  is  the  simple  exchange  of  commodities, 
and  so  long  as  these  get  into  the  hands  of  the  consumer  it 
matters  little  whether  they  come  from  Tartary,  Timbuctoo, 
or  Maine.  It  is  rather  the  quantity  and  quality  of  an  article, 
and  not  the  place  of  its  growth  and  manufacture,  that  most 

304 


SPEECH  AT  SAVANNAH,  GA. 


concern  the  person  using  it ;  and  that  American  consumers 
have  quantity  is  shown  by  the  fact  that  the  internal  commerce 
of  the  United  States  divided  among  the  population  averages 
seven  tons  per  head,  against  six  tons  in  Britain,  although  a 
greater  proportion  of  the  latter  is  for  export.  The  mer- 
chandise sent  from  New  York  to  San  Francisco  is,  so  far  as 
distance  can  make  it,  foreign,  as  foreign  as  that  sent  from 
Liverpool  to  Philadelphia,  and  exchanges  between  Baltimore 
and  Chicago  have  as  foreign  a  character  as  those  between 
London  and  Genoa.  America  presents,  indeed,  the  greatest 
example  of  free  trade  the  world  has  ever  seen.  It  is  also  the 
most  beneficent,  for  without  this  free  trade  there  could  be 
no  union." 

Happily  all  this  is  now  thoroughly  understood  in  all  sec- 
tions of  our  great  country,  and  the  result  of  this  understanding 
is  to  grapple  all  together  with  hooks  of  steel.  We  shall  have 
this  year  at  Chicago,  in  the  Columbian  Exposition,  the 
greatest  exhibit  which  the  world  has  ever  seen,  of  art,  science, 
literature,  mechanics,  material  development  and  prosperity 
of  every  character,  and  yet  we  stand  but  upon  the  threshold 
of  what  is  possible  to  us.  With  the  reform  administration 
now  coming  into  office,  and  the  expected  relief  from  the 
onerous  taxation  of  the  present  tariff,  we  may  confidently 
anticipate  a  future  which  will  not  only  far  surpass  all  realized 
actualities,  but  even  the  wildest  dreams  of  the  most  vivid 
imagination. 

In  speaking  of  the  United  States,  I  must  be  pardoned  for 
referring  to  what  is  to  me  the  greatest  institution  developed 
in  them,  The  Mutual  Life  Insurance  Company  of  New  York, 

305 


SPEECH  AT  SAVANNAH,  GA. 


to  my  connection  with  which  I  am  indebted  for  the  honor 
and  pleasure  of  being  with  you  this  evening.  It  is  an  insti- 
tution now  not  only  of  the  United  States,  but  of  the  world, 
and  is  a  wonderful  illustration  of  the  possibilities  of  our  day 
and  generation.  Commencing  business  fifty  years  ago,  upon 
the  purely  mutual  plan,  without  any  capital,  and  without  any 
resources  but  the  premiums  paid  in  by  its  policy  holders, 
it  is  to-day  of  such  magnitude  that  "should  it  expand  no 
further,  and  simply  carry  out  the  contracts  it  has  already 
made  until  the  last  dollar  of  its  magnificent  accumulation  is 
paid  to  the  family  of  the  last  survivor,  it  must  still  continue 
in  the  generation  to  come  the  vastest  pecuniary  trust  which 
the  world  has  ever  known.  It  will  administer  more  of  the 
wealth  of  the  world  than  the  richest  empire  of  the  East  ever 
controlled,  and  will  pay  out  year  by  year  a  larger  sum  than 
the  government  of  the  United  States  collected  for  its  entire 
revenue  within  the  memory  of  men  now  living." 

I  am  not  touting  for  policies  on  this  occasion,  and  I  assume 
that  every  member  of  this  Board  has  sufficient  business  cau- 
tion to  induce  him  to  carry  all  the  life  insurance  he  can  get; 
so  you  need  not  be  apprehensive  that  I  shall  urge  you  to 
take  out  applications.  What  the  people  of  Georgia  think 
of  us  is  shown  by  the  fact  that  they  insured  their  lives  in  our 
Company  during  the  last  year  alone  for  over  $4,000,000. 
What  we  think  of  the  people  of  Georgia  is  shown  by  the 
other  fact  that  when  we  closed  our  books  on  the  31st  of  De- 
cember last  we  held  among  our  investments  securities  of  the 
State,  and  of  various  municipal,  railroad,  and  other  corpora- 
tions of  Georgia  for  more  than  $4,000,000,  and  that  we  rely 

306 


SPEECH  AT  SAVANNAH,  GA. 


upon  the  payment  of  every  dollar  of  that  indebtedness  with 
the  same  undoubting  confidence  which  is  entertained  by 
every  honest  holder  of  a  policy  in  our  Company.  And  we 
take  a  pardonable  pride  in  the  fact  that  we  were  the  first  to 
recognize  the  potentialities  of  the  new  South,  and  that  we 
subscribed  for  an  entire  issue  of  bonds  of  the  State  of  Georgia 
at  a  time  when  others  hung  back  and  felt  no  confidence  in 
her  future.  Nor  are  we  discouraged  by  any  temporary 
embarrassment  of  a  solvent  corporation.  In  the  nature  of 
things  we  wish  for  the  prosperity  of  every  community  in 
which  we  are  interested,  for  in  the  fullest  sense  of  the  words 
we  are  a  mutual  company  —  their  prosperity  is  our  pros- 
perity, and  their  loss  is  our  loss.  We  must  endeavor  to 
conserve  rather  than  destroy,  since  to  destroy  values  is  to 
injure  ourselves.  Further,  from  the  nature  of  our  business 
we  can  never  be  compelled  to  realize  upon  our  assets;  we 
can  always  give  any  needed  time  for  recuperation;  so  our 
will,  our  interest,  and  our  ability  combine  to  induce  us  to  aid 
the  weak  rather  than  to  oppress  them. 

The  old  Mutual  Life,  now  celebrating  its  jubilee,  looking 
backward  proudly  over  fifty  years  of  unexampled  progress 
and  development,  looking  forward  confidently  to  still  greater 
growth  in  the  future,  sends  by  me  its  greeting  to  the  Board 
of  Trade  of  Savannah,  and  to  the  fair  city  here  represented, 
and  wishes  for  both  similar  prosperity  and  success. 


307 


ADDRESS  TO  BOSTON  LIFE  UNDER- 
WRITERS 

DELIVERED  AT  THE  DINNER  OF  THE  BOSTON  LIFE 
UNDERWRITERS'  ASSOCIATION  ON 

FEBRUARY  14-TH,  1893. 
Reprinted  from  the  Standard,  Boston,  Mass.,  of  February  ISxn,  1893, 


ADDRESS  TO  BOSTON  LIFE  UNDER- 
WRITERS 

IT  gives  me  great  pleasure,  gentlemen,  to  be  with  you  this 
evening,  and  to  be  with  you  as  the  representative  of  one  of 
the  greatest  institutions  of  the  world.  I  presume  it  cannot 
be  necessary  at  this  time  and  before  this  assembly  to  exploit 
the  history  and  the  position  of  the  Mutual  Life.  I  presume 
that  most  of  you,  in  a  business  way,  have  had  occasion  to 
study  her  methods  and  her  figures,  in  order  to  prove  to  pos- 
sible customers  the  vast  superiority  of  the  companies  in  which 
you  are  respectively  interested  over  the  pioneer  in  the  busi- 
ness. But  I  should  not  attempt  now  to  refute  your  arguments 
or  to  question  your  assertions.  To  paraphrase  the  language 
of  Webster:  "I  shall  enter  upon  no  encomium  upon  the 
Mutual  Life.  She  needs  none.  There  she  stands.  Behold 
her  and  judge  for  yourselves.  There  is  her  history;  the 
world  has  it  by  heart.  The  past,  at  least,  is  secure."  In 
the  fifty  years  which  have  elapsed  since  her  organization  she 
has  become  the  greatest  financial  organization  in  the  world. 
She  has  developed  the  principles  of  life  insurance  until  what 
was  a  misty  chaos  of  doubt  and  uncertainty  has  become  a 
coherent  system  of  scientific  laws,  and  she  feels  now  that 
even  her  most  strenuous  and  her  most  active  rivals  in  business 

311 


ADDRESS  TO  BOSTON  LIFE  UNDERWRITERS 

sympathize  with  her  and  congratulate  her  as  she  celebrates 
her  jubilee. 

Yet  to  have  lived  for  fifty  years  is  no  great  achievement, 
either  for  a  man  or  for  a  corporation,  unless  that  life  has 
been  of  some  benefit  to  humanity.  A  selfish,  narrow  exist- 
ence, which  serves  only  the  individual  and  adds  no  appreciable 
force  to  the  great  movement  of  the  world,  is  a  wasted  existence, 
valueless  and  unprofitable.  Not  such  has  been  the  career 
of  the  Mutual  Life  and  of  the  other  life  insurance  companies 
which  in  these  latter  days  have  added  so  much  to  the  com- 
forts of  life,  by  enabling  the  husband  and  father  under  all 
circumstances  to  provide  for  the  future  of  those  whom  sooner 
or  later  he  must  leave  behind  him  to  enter  on  the  conflict 
with  the  world  in  their  own  behalf.  How  many  deathbeds 
this  phase  of  modern  civilization  has  made  easy,  how  many 
widows  it  has  helped  to  comfort,  how  many  children  it  has 
saved  from  poverty  and  vice,  is  known  only  to  the  Omniscient. 
But  every  worker  in  the  field  can  recall  instances  in  his  own 
experience  which  satisfy  him,  at  least,  how  much  good  has 
been  accomplished. 

So  I  think  that  those  of  us  who  are  engaged  in  disseminat- 
ing and  inculcating  the  principles  of  life  insurance,  and  in 
doing  the  work  of  the  companies,  whether  with  the  army  in 
the  field  or  with  the  executive  and  staff  departments  at  the 
Home  Office,  deserve  well  of  our  day  and  generation.  From 
time  to  time  the  old  idea  of  a  more  primitive  era  crops  up, 
that  all  middle  men  or  non-producers,  of  every  class  and 
variety,  are  mere  vampires  of  society  and  mere  drags  upon 
its  progress.  We  cannot  all  be  hewers  of  wood  and  drawers 

312 


ADDRESS  TO  BOSTON  LIFE  UNDERWRITERS 

of  water,  and  a  slight  acquaintance  with  the  principles  of 
political  economy  teaches  us  that  the  savings  of  the  farmer, 
of  the  professional  man,  of  the  clerk,  of  every  one  who  is  not 
engaged  in  business  which  needs  the  use  of  his  own  capital, 
would  be  of  little  value  if  there  were  not  others  to  save  and 
invest  for  him  what  can  be  saved  for  the  exigencies  of  the 
future  from  the  necessities  of  the  present.  It  is  as  unjust  as  it 
is  ungenerous  to  say  that  the  energies  and  toils  which  have 
been  devoted  to  providing  for  the  prudent  and  cautious  a 
competence  for  their  old  age,  or  for  their  dependents,  are 
wasted  and  unproductive.  I  think  that  all  of  us  so  engaged 
and  having  so  passed  our  lives,  as  we  near  the  end  and  look 
back,  can  do  so  with  the  well-earned  satisfaction  of  those 
who,  in  helping  themselves,  have  done  so  much  to  help  others. 
It  may  not  be  out  of  place  on  this  occasion  to  refer  to  a 
discussion  recently  going  on  as  to  the  propriety  of  limiting 
the  transactions  of  great  corporations.  There  is  un- 
doubtedly a  growing  feeling  in  the  minds  of  the  people  that 
some  limit  should  be  placed  upon  the  growth  of  corporate 
capital,  some  limitation  placed  upon  its  increase.  How  far 
that  feeling  may  be  justified  by  facts  I  do  not  care  to  discuss. 
But  it  undoubtedly  exists  and  it  must  be  heeded.  One 
suggestion  has  been  made  by  the  eminent  actuary,  Mr.  D.  P. 
Fackler,  the  president  of  the  Actuarial  Society  of  America, 
who  advises  that  the  assets  of  any  one  company  be  limited 
by  law  to  the  amount  of  two  hundred  millions  of  dollars,  and 
that  any  company  which  has  accumulated  that  amount  shall 
be  prohibited  from  doing  any  new  business  until  they  sink 
below  that  sum.  With  all  respect  for  the  eminent  authority 

313 


ADDRESS  TO  BOSTON  LIFE  UNDERWRITERS 

by  which  it  is  promulgated,  I  think  that  it  is  somewhat  crude 
and  unsatisfactory,  in  view  of  the  consequences  of  such 
action.  When  the  company  had  reached  this  point  it  would 
be  prohibited  from  doing  new  business.  But  in  the  nature 
of  things  its  assets  would  continue  to  grow  for  many  years, 
until  finally,  through  the  operation  of  an  enlarged  death  rate 
and  the  absence  of  new  life,  they  would  slowly  sink,  until  the 
company  was  again  at  liberty  to  endeavor  to  replenish  its 
emptying  coffers.  But  by  that  time  a  species  of  dry  rot 
would  have  set  in.  The  officers,  used  only  to  the  business 
of  the  bank  and  trust  company,  would  have  forgotten  how 
to  appeal  to  the  insuring  public.  The  agency  system  would 
have  fallen  to  pieces  and  would  have  to  be  re-established  at 
large  expense. 

On  the  other  hand,  the  proposition  to  limit  the  business  in 
force  on  the  books  of  any  one  company  to  the  sum  of  one 
thousand  billions  of  dollars,  as  proposed  by  a  bill  lately 
introduced  into  the  legislature  of  the  State  of  Connecticut, 
appears  to  be  open  to  no  reasonable  objection.  Such  a 
limitation  would  at  once  put  an  end  to  the  present  unseemly 
strife  about  agents,  commissions,  and  rebates,  which  has 
been  and  which  is  such  a  serious  injury  to  the  business  gen- 
erally and  to  the  great  competing  companies  especially.  For 
each  company,  seeing  the  end  in  view,  would  have  no  special 
object  in  hastening  its  approach.  And  this  limitation  would 
still  leave  a  large  scope  for  the  labors  of  the  agents  and  for 
work  to  be  done.  For  to  maintain  that  amount  of  insurance 
in  force,  and  to  replace  the  losses  from  deaths  and  surrenders 
and  lapses,  would  require  a  new  business  of  from  sixty  to 

314 


ADDRESS  TO  BOSTON  LIFE  UNDERWRITERS 

seventy  millions  every  year.  On  the  other  hand,  the  limita- 
tion upon  the  amount  of  assets  would  make  it  to  the  interest 
of  each  company  to  attain  that  point  at  the  earliest  possible 
moment  from  premiums  on  new  policies,  which  would  con- 
tinue to  swell  the  assets  in  the  future,  and  so  tend  to  strengthen 
to  an  unbearable  degree  the  competition  now  existing.  This 
we,  at  least,  are  anxious  to  avoid,  and  are  willing  to  accept 
the  proposed  limitation  of  business  in  force  as  one  thousand 
millions  of  dollars. 

I  need  scarcely,  and  yet  it  is  but  courteous  to  say,  how 
greatly  honored  I  have  felt  by  the  invitation  to  attend  this 
dinner,  and  how  much  pleasure  it  has  given  me  to  be  present. 
The  rivalries  and  contests  of  business  may  sometimes  tend 
to  embitter  our  feeling  toward  each  other,  and  it  is  good  on 
such  occasions  as  this  to  meet  together  on  a  common  ground 
and  to  recognize  the  great  underlying  fact  that  we  are  all, 
each  in  our  own  way,  working  for  a  common  object,  that  we 
are  all  striving  for  the  spread  of  the  great  modern  system  of 
life  insurance,  and  through  it  for  the  protection  of  the  homes 
and  the  families  of  our  country. 


315 


SPEECH  AT  WILMINGTON,  DEL. 

AT  A  DINNER  OF  THE  AGENTS  OF  THE  MUTUAL 

LIFE  INSURANCE  COMPANY  OF  NEW  YORK, 

MAY  26,   1893 


SPEECH  AT  WILMINGTON,  DEL. 

IT  gives  me  great  pleasure,  gentlemen,  to  have  the  honor 
of  speaking  on  such  an  occasion  as  this  in  this  ancient  city, 
founded  but  thirty-one  years  after  the  settlement  of  Jamestown, 
and  about  eighteen  years  after  the  landing  of  the  Pilgrims  on 
Plymouth  Rock.  It  goes  back  to  what  is  for  this  country  a 
very  respectable  antiquity,  and  the  old  Swedish  Church 
which  still  stands  in  your  midst  must  be  accounted  among  our 
very  oldest  buildings.  Yet  not  for  antiquity  alone  is  this 
city  or  this  State  to  be  honored  and  esteemed,  but  for  patriotic 
services  rendered  by  its  citizens  during  the  War  of  the  Revo- 
lution, and  for  the  industry  and  enterprise  which  charac- 
terize this  city  to-day. 

I  appear  as  a  representative  of  an  institution  very  far 
junior  in  years,  and  yet  not  unlike  the  city  of  Wilmington 
in  its  marvelous  and  successful  growth.  We  are  now  cele- 
brating the  Jubilee  Year  of  our  history,  and  in  the  fifty  years 
of  our  existence  not  only  have  we  accumulated  the  enormous 
amount  of  assets  which  we  now  hold,  but  we  have  been 
pioneers  in  the  great  system  of  life  insurance,  which  has 
become  one  of  the  great  institutions  of  our  country  and  age. 
When  we  commenced  business,  the  principles  upon  which 
it  should  be  founded  were  but  vaguely  understood,  the 

319 


SPEECH  AT  WILMINGTON,  DEL. 

importance  of  a  reserve  was  not  duly  estimated,  the  risks  to  be 
assumed  were  largely  matter  of  guess  work,  and  the  premiums 
to  be  charged  were  equally  uncertain.  It  is  largely  owing 
to  the  studies  and  experiments  of  this  company,  that  what 
was  then  misty  and  indefinite  has  become  definite  and  cer- 
tain, and  that  the  elements  upon  which  the  calculations  of 
to-day  are  based  are  as  absolutely  correct  as  are  the  founda- 
tions of  any  other  science. 

I  suppose  it  is  hardly  possible  to  make  an  after-dinner 
speech  without  repeating  a  story,  and  I  venture  to  tell  you 
one  which  I  heard  last  winter,  and  which  being  entirely  new 
to  me  is,  I  hope,  equally  so  to  you.  It  was  the  experience  of 
a  good  brother  living  in  one  of  the  suburbs  of  Boston,  who 
had  undertaken  to  entertain  over  Sunday  a  clergyman  who 
was  visting  the  place  to  supply  a  vacant  pulpit  for  the  day. 
As  the  narrator  says,  when  the  parson  arrived  late  on  Satur- 
day night  he  seemed  pretty  glum  and  pretty  quiet,  and  we 
didn't  say  much  to  each  other,  and  we  didn't  say  much  when 
we  met  at  breakfast  next  morning.  As  we  walked  to  church 
he  was  so  sour  and  so  glum  and  so  quiet  that  I  hadn't  the 
heart  to  speak;  and  then  he  got  up  and  preached  us  a  most 
dismal  and  depressing  sermon  about  man  as  a  miserable 
worm,  crawling  in  the  dust  and  expecting  every  moment  to 
encounter  the  just  wrath  of  an  offended  Creator,  and  by  the 
time  he  got  through,  and  we  started  home,  I  was  about  as 
dismal  and  low  down  in  my  mind  as  I  could  be;  and  it  oc- 
curred to  me  that  he  looked  like  a  prohibitionist,  and  I  was 
in  the  habit  of  drinking  a  bottle  of  champagne  for  my  dinner 
on  every  Sunday,  and  I  thought  perhaps  I  had  better  omit  it 

320 


SPEECH  AT  WILMINGTON,  DEL. 

• 

on  that  day,  and  then  I  thought  I  wouldn't;  and  when  we 
came  in  to  dinner,  I  said,  "  Parson,  I  have  an  old  uncle  up  in 
Vermont  who  every  fall  sends  me  down  a  barrel  of  cider,  and 
I  have  a  bottle  of  it  for  my  dinner  every  Sunday  through  the 
winter,  and  I  would  like  to  have  you  try  it."  The  parson 
said  he  was  pretty  strict,  but  he  was  willing  to  take  cider, 
and  he  took  a  glass  and  said  it  was  the  best  cider  he  ever 
drank;  and  then  he  took  another  glass,  and  then  he  took  a 
third;  and  when  we  went  back  to  church  in  the  afternoon, 
he  held  up  his  head  and  he  pranced  up  the  middle  aisle  and 
up  into  the  pulpit  like  a  coupe  horse;  and  he  preached  us  a 
rousing  sermon  on  the  text,  "And  God  created  man  in  his 
own  image."  The  two  states  of  mind  are  widely  different,  and 
I  can  imagine  the  first  to  have  been  that  which  was  enter- 
tained by  the  first  president  of  the  Mutual  Life,  when  he 
endeavored  to  discount  the  Company's  note  to  raise  funds  to 
pay  the  first  loss  by  death,  and  was  obliged  by  his  bank  to 
obtain  the  personal  indorsement  of  some  of  his  trustees, 
and  the  other  that  of  the  present  able  chief  executive,  one  of 
whose  great  anxieties  is  to  invest  in  safe  and  profitable  secur- 
ities the  millions  of  dollars  constantly  rolling  in  upon  him 
from  every  section  of  the  civilized  world. 

But  there  are  other  gentlemen  present  brimming  over  with 
eloquence  which  they  are  anxious  to  outpour  upon  this 
audience,  and  I  do  not  feel  justified  in  taking  more  of  your 
time  for  the  Mutual  Life.  Let  me  only  add  how  thoroughly 
I  have  enjoyed  this  my  first  visit  to  your  State,  and  how 
earnestly  I  hope  that  some  similar  occasion  may  soon  call  me 
here  again. 

321 


LIFE  INSURANCE  IN  ITS  RELATION 
TO  LEGAL  MEDICINE 

A   PAPER    READ    BEFORE   THE   WORLD'S    CONGRESS 
AUXILIARY  OF  THE  WORLD'S  COLUMBIAN  EXPO- 
SITION, DEPARTMENT  OF  COMMERCE  AND 
FINANCE  —  LIFE  INSURANCE  CONGRESS 
AT  CHICAGO,  ILL..  JUNE  21,  1893. 


LIFE  INSURANCE  IN  ITS  RELATION  TO  LEGAL 
MEDICINE 

IN  treating  the  subject  allotted  to  me,  it  seems  not  improper 
as  a  preliminary  to  consider  the  relations  which  the  two 
professions  whose  united  efforts  produce  the  science  of  Legal 
Medicine  bear  to  Life  Insurance.  It  is  a  truism  to  remark 
that  the  whole  fabric  depends  upon  the  fidelity,  the  learning, 
and  the  skill  of  medical  men.  When  a  company  is  formed, 
the  lawyer  may  carefully  draw  its  charter  and  its  by-laws  and 
formulate  the  contracts  upon  which  it  is  willing  to  enter;  the 
actuary  may  accurately  estimate  the  risks  to  be  encountered, 
the  rate  of  interest  to  be  expected,  and  the  loading  necessary 
to  cover  expenses;  the  executive  may  organize  with  skill  and 
economy  the  working  force  and  the  agents  in  the  field,  but 
unless  the  medical  examiner  does  his  duty  in  barring  out 
undesirable  risks  and  accepting  only  those  who  may  reason- 
ably be  expected  to  live  out  their  theoretical  expectation  of 
life,  the  company  is  predestined  to  loss  and  ruin.  He  stands 
as  a  sentinel  at  the  gate  to  prevent  the  ingress  of  those  who 
would  only  destroy  the  structure,  and  upon  his  vigilance  and 
care  depend  its  continued  existence.  Any  lapse  from  the 
strict  performance  of  duty,  any  concealment  of  facts  which 
the  company  should  know  in  order  to  properly  estimate  the 

325 


LIFE  INSURANCE  IN  ITS 


risk  to  be  assumed,  any  approval  of  doubtful  lives  from 
motives  of  personal  friendship  or  unwillingness  to  incur  local 
enmities,  is  to  admit  a  traitor  to  make  a  breach  in  the  growing 
edifice  which  may  easily  result  in  its  total  downfall.  I  speak 
from  my  long  experience  in  the  service  of  The  Mutual  Life 
Insurance  Company  of  New  York,  when  I  say  that  no  lan- 
guage can  be  too  strong  to  express  my  sense  of  the  faithful 
and  careful  work  by  the  medical  examiner.  Nor  would  I 
belittle  the  importance  of  my  own  profession  in  this  great 
field  of  modern  enterprise.  Not  only  are  the  services  of  the 
lawyer  necessary  in  the  first  inception  of  the  company  to 
prepare  the  charter  and  rules  of  government,  the  forms  of 
policies,  the  agreements  with  agents  and  all  the  contracts 
with  various  individuals  necessary  to  set  the  machine  in 
active  operation,  but  in  supervising  its  investments,  in  de- 
claring in  what  securities  its  funds  may,  and  in  what  they 
may  not,  be  invested,  in  examining  the  countless  questions  as 
to  insurable  interest,  the  form  of  policy,  the  next  of  kin  of  a 
deceased  beneficiary,  the  rights  of  adverse  claimants,  the 
validity  of  assignments,  to  say  nothing  of  the  payment  of 
legitimate  claims  to  the  persons  entitled  to  the  money,  and  in 
examining  claims  which  may  be  doubtful  and  even  fraudu- 
lent, his  aid  is  indispensable.  Not  only  in  this  branch  of 
business  but  in  many  others  are  the  relations  of  the  two  pro- 
fessions so  closely  connected  that  when  Prof.  John  J.  Elwell, 
in  1859,  published  his  "Medico-Legal  Treatise  on  Malprac- 
tice and  Medical  Evidence  comprising  the  Elements  of 
Medical  Jurisprudence,"  he  wisely  chose  as  the  motto  of  his 
work  the  remark  of  David  Paul  Brown,  Esq.,  in  his  day  a 

326 


RELATION  TO  LEGAL  MEDICINE 

distinguished  member  of  the  Philadelphia  Bar,  "a  doctor 
who  knows  nothing  of  law  and  a  lawyer  who  knows  nothing 
of  medicine,  are  deficient  in  essential  requisites  of  their  pro- 
fessions." But  it  would  be  difficult  to  find  any  form  of  com- 
mercial transactions  more  directly  and  absolutely  dependent 
upon  those  two  professions  than  the  great  business  of  Life 
Insurance. 

In  the  discussion  of  any  subject  it  is  well  to  begin  with 
clear  definitions  as  the  only  preventative  of  misunderstanding 
and  error.  I  think  I  may  safely  assume  that  all  in  this 
audience  are  sufficiently  familiar  with  Life  Insurance  to 
comprehend  me  when  I  say  that  I  mean  the  system  as  prac- 
tised and  carried  into  effect  by  the  great  companies  of  this 
country.  The  term  Legal  Medicine,  or,  as  it  has  been  also 
called,  Medical  Jurisprudence  or  Forensic  or  State  Medicine, 
has  been  defined  by  many  writers,  but  the  most  satisfactory 
definition  to  my  mind  is  that  given  by  Dr.  Alfred  Swaine 
Taylor,  in  his  great  work  on  the  subject.  He  says  it  is  "that 
science  which  teaches  the  application  of  every  branch  of 
medical  knowledge  to  the  purposes  of  the  law;  hence  its 
limits  are,  on  the  one  hand,  the  requirements  of  the  law,  and 
on  the  other  the  whole  range  of  medicine.  Anatomy,  physi- 
ology, medicine,  surgery,  chemistry,  physics,  and  botany 
lend  their  aid  as  necessity  arises;  and  in  some  cases  all  these 
branches  of  science  are  required  to  enable  a  court  of  law  to 
arrive  at  a  proper  conclusion  on  a  contested  question  affecting 
life  or  property." 

Assuming  that  the  medical  examiner  has  performed  his 
duty  fully  in  the  first  instance,  that  the  application  is  satis- 

327 


LIFE  INSURANCE  IN  ITS 


factory  on  its  face,  and  that  a  policy  has  been  issued,  the 
questions  which  are  likely  to  arise  in  which  legal  medicine 
must  be  called  in  to  assist  the  company  may  be  broadly 
divided  into  three  groups  as  follows: 

1st.  —  Questions  arising  under  misrepresentations  or  false 
statements  made  in  the  original  application. 

2d.  —  Subsequent  violation  of  his  obligation  by  the  insured, 
such  as  gross  intemperance,  or  transgression  of  the  restric- 
tions imposed  on  residence  or  occupation. 

3d.  —  Death  in  violation  of  the  contract  as  by  suicide,  or  a 
fraudulent  attempt  to  prove  the  death  of  the  insured  while 
still  living. 

Misrepresentations  or  false  statements  in  the  original 
application  when  important  refer  either  to  the  physical  con- 
dition or  to  the  habits  of  the  applicant.  If  the  medical  man 
who  is  called  as  a  witness  on  the  trial  has  been  the  attend- 
ing physician  of  the  insured,  he  is  in  many  States  barred  from 
testifying  as  to  the  disease  or  diseases  of  his  patient  by  the 
statutes  forbidding  a  physician  to  testify  concerning  any 
information  which  he  may  have  acquired  from  any  patient 
while  attending  him  in  a  professional  character,  and  which 
information  was  necessary  to  enable  him  to  prescribe  for 
such  patient,  or  do  any  act  for  him  as  a  surgeon.  In  the 
case  of  Gartside  vs.  Insurance  Company,  reported  in  76  Mis- 
souri, page  446,  an  attempt  was  made  to  draw  the  distinction 
that  the  statute  forbids  the  physician  to  disclose  only  such 
information  as  has  been  communicated  to  him  orally  by  his 
patient.  But  the  Court  very  properly  said:  "It  is  doubtless 
true  that  a  physician  learns  more  of  the  condition  of  a  patient 

328 


RELATION  TO  LEGAL  MEDICINE 

from  his  own  diagnosis  of  the  case  than  from  what  is  com- 
municated by  the  words  of  the  patient;  and  to  say  that 
while  the  mouth  of  a  physician  is  sealed  as  to  the  informa- 
tion acquired  orally  from  his  patient,  it  is  opened  wide  as 
to  information  acquired  from  a  source  on  which  he  must 
rely,  viz.,  his  own  diagnosis  of  the  case,  would  be  to 
restrict  the  operation  of  the  statute  to  narrower  limits  than 
was  ever  intended  by  the  legislature,  and  virtually  to  over- 
throw it." 

I  have  cited  this  case  in  preference  to  many  others  on  the 
same  subject,  because  the  reporter  has  attached  to  it  a  foot- 
note giving  the  names  of  the  States  and  Territories  (twenty  in 
all)  which  have  enacted  similar  statutes,  and  the  date  of  each, 
from  that  adopted  in  New  York  in  1828,  to  that  in  the  Terri- 
tory of  Washington  in  1882. 

Yet  the  attending  physician  may  often  give  testimony  of 
the  utmost  importance,  notwithstanding  this  limitation. 
Among  the  questions  upon  truthful  answers  to  which  depends 
the  validity  of  a  policy  is  usually  one,  "When  did  you  last 
consult  a  physician  ?"  or,  "When  were  you  last  attended  by  a 
physician  ?"  and  if  the  evidence  of  the  medical  attendant 
shows  that  this  was  falsely  answered,  his  testimony  would  be 
fatal  to  the  plaintiff,  since  the  fact  of  such  attendance  would 
be  the  point  at  issue,  and  the  disease  for  which  the  attendance 
was  required  would  be  immaterial. 

Other  misrepresentations  or  false  statements  in  the  applica- 
tion usually  refer  to  some  personal  illness  or  injury. 

What  is  a  serious  illness  or  injury  must  depend  upon  the 
circumstances  of  each  particular  case.  The  insurance  com- 

329 


LIFE  INSURANCE  IN  ITS 


panics  at  the  present  day  are  disposed  to  deal  liberally  with 
their  policy-holders,  to  take  no  advantage  of  technical  points, 
and  to  contest  a  claim  only  when  thoroughly  satisfied  that 
their  duty  to  their  honest  constituents  compels  them  to  do  so. 
This  point  was  well  considered  by  Mr.  Justice  Earl  in  the 
case  of  Cushman  vs.  Insurance  Co,  (70  New  York,  p.  72), 
when  the  applicant  had  answered  in  the  negative  the  question 
whether  he  had  ever  had  congestion  of  the  liver.  The  learned 
Judge  says,  "In  construing  contracts  words  must  have  the 
sense  in  which  the  parties  used  them,  and  to  understand  them 
as  the  parties  understood  them,  the  nature  of  the  contract, 
the  objects  to  be  attained  and  all  the  circumstances  must  be 
considered.  By  the  questions  inserted  in  the  application 
the  defendant  was  seeking  for  information  bearing  upon  the 
risk  which  it  was  to  take  —  the  probable  duration  of  the  life 
to  be  insured.  It  was  not  seeking  for  information  as  to 
merely  temporary  disorders,  or  functioned  disturbances, 
having  no  bearing  upon  the  general  health  or  continuance 
of  life.  Colds  are  generally  accompanied  with  more  or  less 
congestion  of  the  lungs,  and  in  such  a  case  there  is  no  disease 
of  the  lungs  which  an  applicant  for  insurance  would  be  bound 
to  state.  So  most,  if  not  all,  persons  will  have  at  times  con- 
gestion of  the  liver,  causing  slight  functional  derangements 
and  temporary  illness,  and  yet  in  the  contemplation  of 
parties  entering  into  contracts  of  Life  Insurance,  and 
having  regard  to  the  general  health  and  continuance  of  life, 
it  may  be  safely  said  that  in  such  cases  there  is  no  disease 
of  the  liver." 

"In  construing  a  policy  of  Life  Insurance  it  must  be  gen- 
330 


RELATION  TO  LEGAL  MEDICINE 

erally  true  that  before  any  temporary  ailment  can  be  called 
a  disease  it  must  be  such  as  to  indicate  a  vice  in  the  constitu- 
tion, or  to  be  so  serious  as  to  have  some  bearing  upon  the 
general  health  and  the  continuance  of  the  life,  or  such  as 
according  to  common  understanding  would  be  called  a 
disease;  and  such  has  been  the  opinion  of  the  best  writers 
and  judges.  Hence,  whether  the  insured  had  congestion  of 
the  liver,  and  whether  the  congestion  was  of  such  a  character 
as  to  constitute  a  disease  of  the  liver,  within  the  meaning  of 
the  policy,  were  both  questions  properly  submitted  to  the 
jury,  and  their  determination  thereon  is  conclusive." 

So  in  regard  to  the  habits  of  the  insured,  as  to  the  use  of 
alcohol,  morphine,  tobacco,  or  any  other  drug  or  stimulant. 
It  is  not  sufficient  to  prove  an  isolated  case  of  indulgence  or 
excess,  but  a  customary-,  habitual  use.  In  the  case  of  Foley 
vs.  Insurance  Company  (105  United  States,  p.  350),  this 
distinction  is  ably  drawn  by  Mr.  Justice  Field.  He  says: 
"The  question  was  as  to  the  habits  of  the  insured.  His 
occasional  use  of  intoxicating  liquors  did  not  render  him  a 
man  of  intemperate  habits,  nor  would  an  exceptional  case  of 
excess  justify  the  application  of  this  character  to  him. 

"When  we  speak  of  the  habits  of  a  person  we  refer  to  his 
customary  conduct,  to  pursue  which  he  has  acquired  a  ten- 
dency from  frequent  repetitions  of  the  same  acts.  It  would 
be  incorrect  to  say  that  a  man  has  a  habit  of  anything  from 
a  single  act.  A  habit  of  early  rising,  for  example,  could  not 
be  affirmed  of  one  because  he  was  seen  on  the  streets  in  the 
morning  before  the  sun  had  risen:  nor  could  intemperate 
habits  be  imputed  to  him  because  his  appearance  and  actions 

331 


LIFE  INSURANCE  IN  ITS 


on  that  occasion  might  indicate  a  night  of  excessive  indulgence. 
The  Court  did  not,  therefore,  err  in  instructing  the  jury  that 
if  the  habits  of  the  insured,  'in  the  usual,  ordinary,  and  every- 
day routine  of  his  life  were  temperate,'  the  representations 
made  are  not  untrue  within  the  meaning  of  the  policy,  al- 
though he  may  have  had  an  attack  of  delirium  tremens  from 
an  exceptional  over-indulgence.  It  could  not  have  been 
contemplated  from  the  language  used  in  the  policy  that  it 
should  become  void  for  an  occasional  excess  by  the  insured, 
but  only  when  such  excess  had  by  frequent  repetitions  be- 
come a  habit." 

In  the  second  group  I  have  mentioned,  medical  testimony 
would  become  necessary  only  to  prove  violation  of  the  promise 
of  the  insured  not  to  become  so  far  intemperate  as  to  impair 
his  health,  some  policies  stipulating  that  they  shall  become 
void  if  this  contingency  happen,  and  would  be  subject  to  the 
limitations  already  recited.  I  know  of  but  two  cases  on  this 
point,  one  of  Insurance  Company  vs.  Insurance  Company  in 
the  U.  S.  Circuit  Court  of  Connecticut  (17  Blatchford,  p.  142), 
where  a  suit  was  brought  in  equity  to  cancel  the  policy  on 
this  ground,  and  the  Court  held  that  the  desired  relief  should 
be  granted,  because  of  its  expediency  and  in  order  to  be  just 
to  the  other  policy-holders;  that  the  foundation  of  insurance 
is  the  law  of  average,  and  if  the  insured  are  permitted  know- 
ingly to  indulge  in  practises  that  notoriously  invite  disease, 
the  investment  of  other  insured  persons  is  jeopardized.  But 
in  the  case  of  Insurance  Company  vs.  Bear  (26  Federal  Re- 
porter, p.  582),  upon  a  precisely  similar  state  of  facts,  the 
Court  refused  the  prayer  of  the  Company  holding  that  a  Court 

332 


RELATION  TO  LEGAL  MEDICINE 

of  Equity  would  not  set  aside  a  policy  of  life  insurance  during 
the  life  of  the  assured  on  the  ground  that  it  has  been  rendered 
void  by  something  not  appearing  on  the  face  of  the  policy, 
and  which  could  be  proved  by  extrinsic  evidence;  that  if 
such  power  existed,  it  was  not  a  case  for  the  ordinary  exer- 
cise of  the  discretionary  power  of  the  Court  of  Equity  to  order 
a  cancellation,  because  the  insured,  who  was  then  intemperate, 
might  reform  and  live  out  the  ordinary  expectation  of  life. 

The  two  cases  offer  another  illustration  of  the  great  truth 
that  lawyers,  as  well  as  doctors,  often  differ  in  opinion. 

But  important  as  are  the  functions  of  the  medical  witness 
in  these  two  groups  of  cases,  it  is  in  the  third  that  his  services 
become  absolutely  indispensable.  Many  of  the  companies 
have  now,  and  for  many  years  to  come  will  have,  policies  in 
force  prohibiting  suicide  either  absolutely  or  within  a  limited 
period  after  date,  under  penalty  of  forfeiture  of  the  insurance. 
Indeed,  I  am  not  at  all  sure  that  public  policy  would  not,  or 
at  least  should  not,  prevent  a  man  from  procuring  a  pecuniar}* 
benefit  to  his  estate  by  his  deliberate  self-destruction.  This 
was  intimated  by  Judge  Rapallo  in  the  case  of  Van  Zandt  vs. 
Insurance  Company  (55  New  York,  139),  when  he  says, 
"The  policy  creates  in  the  insured  a  pecuniary  interest  in 
his  own  death.  To  a  man  laboring  under  the  pressure  of 
poverty,  and  the  urgent  wants  of  a  dependent  family,  or  of 
inability  to  discharge  sacred  pecuniary  obligations,  or  other 
similar  causes,  the  policy  offers  a  temptation  to  self-destruc- 
tion. To  protect  the  insurers  against  the  increase  of  risk 
arising  out  of  this  temptation  is  the  object  for  which  the 
condition  in  question  (that  the  policy  should  \w  void  if  the 

333 


LIFE  INSURANCE  IN  ITS 


insured  should  die  by  his  own  hand)  was  inserted.  The 
condition,  therefore,  is  to  be  so  construed  as  to  exclude  only 
those  cases  in  which  these  motives  could  not  have  operated 
—  such  as  accident  or  delirium.  So  far  as  considerations  of 
public  policy  have  any  place  in  determining  such  a  question, 
they  are  undoubtedly  in  favor  of  confining  the  exceptions 
to  the  condition  to  cases  in  which  the  self-destruction  is  clearly 
shown  to  have  been  accidental  or  involuntary." 

It  is  well  settled  that  the  beneficiary  under  a  policy  cannot 
obtain  the  money  by  killing  the  insured  —  see  Armstrong 
vs.  Insurance  Company,  117  U.  S.,  p.  591,  in  which  the  facts 
were  as  follows:  A  creditor  of  Armstrong,  one  Hunter,  per- 
suaded him  to  insure  his  life  and  assign  the  policy  as  security 
for  the  debt,  and  some  six  weeks  after  murdered  him,  for 
which  he  was  convicted  and  hung.  Before  his  execution, 
he  assigned  the  policy  to  the  widow  of  his  victim,  who  of 
course,  under  the  familiar  rule  of  law,  took  it  subject  to  all 
equities  existing  between  her  assignor  and  the  company. 
The  Court  per  Mr.  Justice  Field  held  that  "  independently 
of  any  proofs  of  the  motives  of  Hunter  in  obtaining  the  policy, 
and  even  assuming  that  they  were  just  and  proper,  he  for- 
feited all  rights  under  it  when,  to  secure  its  immediate  pay- 
ment, he  murdered  the  assured.  It  would  be  a  reproach  to 
the  jurisprudence  of  the  country  if  one  could  recover  insur- 
ance money  payable  on  the  death  of  a  party  whose  life  he 
had  feloniously  taken.  As  well  might  he  recover  insurance 
money  upon  a  building  that  he  had  wilfully  fired." 

The  same  views  of  public  policy  control  where  the  death 
follows  as  the  result  of  a  crime,  even  without  any  express 

334 


RELATION  TO  LEGAL  MEDICINE 

stipulation  to  that  effect.  This  principle  was  first  laid  down 
in  a  suit  on  a  policy  upon  the  life  of  the  celebrated  forger 
Fauntleroy,  who  was  hung  for  the  commission  of  felonies. 
The  policy  was  sustained  in  the  Rolls  Court,  but  upon  appeal 
to  the  House  of  Lords  the  decree  was  reversed  upon  the 
advice  of  Lord  Chief  Justice  Lyndhurst.  He  thought  that 
an  insurance  expressly  against  the  event  would  be  void,  and 
therefore  effect  could  not  be  given  to  a  general  policy  upon 
an  event  which,  if  expressed  in  terms,  would  have  rendered 
the  policy,  as  far  as  the  condition  went,  at  least,  absolutely 
void.  A  stipulation  to  uphold  a  policy  in  any  such  case 
would  be  contrary  to  sound  policy,  as  taking  away  one  of  the 
restraints  operating  on  the  minds  of  men  against  the  com- 
mission of  crimes  by  the  interest  which  they  have  in  the 
welfare  and  prosperity  of  their  connections.  (Amicable  So- 
ciety vs.  Bottand,  4  Bligh,  N.  S.,  194.) 

This  case  was  followed  in  Hatch  vs.  Insurance  Co.  (120 
Mass.,  p.  550),  where  a  married  woman,  upon  whose  life  a 
policy  was  issued,  voluntarily  submitted  to  an  operation  for 
abortion  without  any  justifiable  medical  reason,  from  which 
death  resulted.  Judge  Endicott,  speaking  for  the  Court, says: 
"It  is  therefore  established  that  this  voluntary  act  on  her 
part,  condemned  alike  by  the  laws  of  nature  and  by  the  laws 
of  all  civilized  states,  and  known  by  her  to  be  dangerous  to 
life,  did  actually  result  in  death.  And  the  question  is  raised 
whether  for  a  death  so  caused  the  defendant  is  liable. 

"  We  are  of  opinion  that  no  recovery  can  be  had  in  this 
case,  because  the  act  on  the  part  of  the  assured  causing  death 
was  of  such  a  character  that  public  policy  would  preclude  the 

335 


LIFE  INSURANCE  IN  ITS 


defendant  from  insuring  her  against  its  consequences:  for  we 
can  have  no  question  that  a  contract  to  insure  a  woman 
against  the  risk  of  her  dying  under  and  in  consequence  of  an 
illegal  operation  for  abortion  would  be  contrary  to  public 
policy,  and  could  not  be  enforced  in  the  courts  of  this  Com- 
monwealth." 

In  my  opinion,  these  cases  establish  definitely  the  principle 
that  no  one  can  profit  by  his  own  wrong,  and  I  think  them 
fairly  applicable  when  the  estate  of  the  insured  is  to  receive 
the  benefit  of  his  deliberate  self-destruction. 

It  is  well  settled  that  there  is  no  presumption  of  suicide, 
and  where  a  dead  body  is  found  under  circumstances  con- 
sistent with  either  an  accidental  injury  or  a  suicidal  act,  in 
the  absence  of  proof,  "  the  presumption  is  against  the  latter. 
It  is  contrary  to  the  general  conduct  of  mankind;  it  shows 
gross  moral  turpitude  in  a  sane  person."  (Insurance  Com- 
pany vs.  McConkey,  127  United  States,  p.  661.)  So  when 
a  medical  man  is  called  to  view  a  corpse  he  should  note  all 
the  attendant  circumstances  and  surroundings  with  the 
minute  attention  to  details  prescribed  by  the  standard  writers 
on  Medical  Jurisprudence,  as  the  elucidation  of  the  truth 
often  depends  upon  matters  which  appear  at  the  time  to  be 
of  the  most  trivial  importance.  A  very  striking  story  on  this 
point  was  told  by  Lord  Eldon,  late  in  life,  and  is  thus  recorded 
in  his  biography:  "I  have  heard  some  very  extraordinary 
cases  of  murder  tried.  I  remember  in  one  where  I  was 
counsel,  for  a  long  time  the  evidence  did  not  appear  to  touch 
the  prisoner  at  all,  and  he  looked  about  him  with  the  most 
perfect  unconcern,  seeming  to  think  himself  quite  safe.  At 

336 


RELATION  TO  LEGAL  MEDICINE 

last  the  surgeon  was  called,  who  stated  that  the  deceased  had 
been  killed  by  a  shot  —  a  gun  shot  —  in  the  head,  and  he 
produced  the  matted  hair  and  stuff  cut  from  and  taken  out 
of  the  wound.  It  was  all  hardened  with  blood.  A  basin  of 
warm  water  was  brought  into  court,  and  as  the  blood  was 
gradually  softened,  a  piece  of  printed  paper  appeared  —  the 
wadding  of  the  gun  —  which  proved  to  be  half  of  a  ballad. 
The  other  half  had  been  found  in  the  man's  pocket  when  he 
was  taken.  He  was  hanged." 

In  this  case  the  evidence  was  direct  and  conclusive,  but 
often,  and  it  may  be  said  usually,  the  proof  of  a  suicide  or 
murder  is  largely  inferential  and  circumstantial.  \Ve  have 
recently  had  in  our  State  a  case  of  this  character,  which  has 
attracted  much  attention,  and  aroused  great  interest,  that  of 
Carlyle  W.  Harris,  tried  and  convicted  for  the  murder  of  his 
wife  by  poison.  I  would  advise  any  one  who  still  entertains 
a  lingering  doubt  of  the  justice  of  that  conviction  to  read  the 
masterly  opinion  of  Judge  Gray  in  the  Court  of  Appeals  (136 
New  York,  p.  423),  in  which  the  facts  are  summed  up  with  a 
directness  and  force  which  amount  to  a  demonstration. 
The  Judge  very  truly  observes  that  "the  mind  may  be  reluc- 
tant to  conclude  upon  the  issue  of  guilt  in  criminal  cases 
upon  evidence  which  is  not  direct,  and  yet  if  the  facts  brought 
out,  when  taken  together,  all  point  in  the  one  direction  of 
guilt  and  to  the  exclusion  of  any  other  hypothesis,  there  is  no 
substantial  reason  for  that  reluctance." 

While  cases  may  and  do  occur  in  which  the  fact  of  suicide 
may  be  proved  by  direct  evidence,  such  as  the  letters  or 
declarations  of  the  deceased,  or  the  testimony  of  eye-witnesses, 

337 


LIFE  INSURANCE  IN  ITS 


as  a  rule  it  is  necessary  to  invoke  the  aid  of  the  medical  expert 
and  depend  upon  his  deductions  from  the  observations  he 
has  made. 

Most  important  is  his  assistance  in  the  numerous  attempts 
which  have  been  made  to  defend  companies  by  substituting 
a  corpse  represented  to  be  that  of  the  insured.  Here  we  come 
to  the  domain  of  personal  identification,  one  of  the  most 
perplexing  subjects  which  has  ever  bothered  and  confused 
judges  as  well  as  juries.  From  the  days  of  Martin  Guerre 
down  to  those  of  the  Tichborne  claimant,  men  have  been  able 
to  conceal  or  simulate  identity,  and  to  produce  evidence  in 
abundance  perfectly  honest  and  yet  directly  contradictory. 
The  reason  is  not  far  to  seek  and  is  so  happily  stated  by  a 
writer  in  the  London  Spectator,  cited  in  the  Third  Edition  of 
Wharton  &  Stille's  Medical  Jurisprudence  (Vol.  2,  Sect. 
1240),  that  I  allow  myself  the  pleasure  of  quoting  freely  from 
his  article. 

"  We  are  all  apt  to  think  that  we  observe  faces  very  carefully; 
but  it  is  quite  certain,  more  certain  than  almost  any  assertion 
of  the  same  kind,  that  we  do  not  so  observe  them.  We  are 
also  apt  to  believe  that  the  difference  in  faces  is  very  great, 
is  radical,  and  not  dependent  upon  accidental  features,  yet 
it  is  almost  certain  that  no  such  difference  exists;  that  men 
are  in  reality  as  nearly  alike  as  animals  appear  to  be.  Take, 
for  instance,  in  evidence  of  both  of  these  propositions  —  of 
the  carelessness  of  our  usual  glance,  and  of  the  similarity 
among  men  —  a  fact  which  a  number  of  our  readers  can  test 
for  themselves.  No  man,  on  landing  at  an  Indian  or  Chinese 
port  for  the  first  time,  can  for  a  few  days  tell  one  man  from 

338 


RELATION  TO  LEGAL  MEDICINE 

another.  The  natives  are  more  decidedly  unlike  than  so 
many  Englishmen,  because,  in  addition  to  every  other  dis- 
tinction, their  complexions  cover  a  wider  range  of  color;  but, 
being  similarly  dressed,  they  seem  for  a  few  days  as  much 
alike  as  so  many  sheep,  who  are  all  alike  to  a  Londoner,  but 
among  whom  a  shepherd  or  a  dog  makes  no  mistake.  Now, 
if  men  were  much  unlike,  more  unlike  than  the  sheep  are, 
no  such  curious  haziness  would  be  possible:  nor  would  it  be 
if  the  observer  were  unconsciously  in  the  habit  of  studying 
the  form  and  character  of  each  face.  —  Death,  as  a  rule, 
while  it  leaves  much  unchanged,  absolutely  destroys  every 
distinction  based  either  upon  color  or  upon  fatness,  and 
modifies  thinness  in  the  most  unexpected  way,  revealing 
unsuspected  depths  about  the  brow  and  mouth,  while  leaving 
the  cheek  untouched.  No  child  is  recognizable  in  death  by 
mere  acquaintance,  because  in  children's  faces  the  prominent 
points  are  color  and  contour.  —  Expression  changes  quickly 
—  may  change  permanently.  We  all  say,  every  now  and 
then,  'his  face  is  quite  changed,'  while  nothing  is  changed 
except  perhaps  the  expression  and  the  color.  Madness, 
extreme  anger,  drink,  will  all  change  a  well-known  face  till 
it  is  almost  unrecognizable;  and  though  no  doubt  it  requires 
a  combination  of  circumstances  to  deceive  a  wife  as  to  her 
husband's  identity,  still  there  is  one  expression  she  has  never 
seen,  and  that  is  death,  of  all  the  influences  the  one  which 
may  most  modify  expression,  both  by  altering  the  set  of  the 
features  and  changing  the  emotional  medium  through  which 
we  regard  them." 

It  follows  that  while  the  identification  of  the  living  is  some- 

339 


LIFE  INSURANCE  IN  ITS 


times  difficult,  this  difficulty  is  enormously  increased  after 
death,  especially  when,  as  usually  occurs  when  an  attempt 
at  substitution  is  made,  the  corpse  is  partially  burned  or  other- 
wise mutilated.  It  then  becomes  important  to  seek  for  some 
personal  marks  or  defects,  and  these  are  frequently  found  in 
the  teeth.  It  is  well  remarked  by  Mr.  George  E.  Harris, 
in  his  able  treatise  on  the  Law  of  Identification,  that 
"we  often  complain  of  decayed  teeth  and  resort  to  the 
dentist.  But  it  seems,  from  observation  and  scientific  tests, 
that  after  death,  when  the  human  remains  have  mingled 
with  the  dust,  or  been  consumed  by  fire,  the  teeth  remain 
and  may  be  identified,  and  the  dentist  may  recognize  and 
identify  his  work  on  the  teeth,  performed  in  the  lifetime  of 
the  subject." 

This  matter  became  of  great  importance  to  the  Mutual 
Life  Insurance  Company  in  the  case  of  Winfield  Scott 
Goss,  a  young  mechanic,  who,  after  insuring  his  life  for 
twenty-five  thousand  (25,000)  dollars,  in  that  and  other 
companies,  hired  a  small  shanty  in  the  outskirts  of  Balti- 
more, for  the  ostensible  purpose  of  using  it  as  a  laboratory 
for  some  experiments  in  the  effort  to  make  an  artificial 
india-rubber.  Soon  after,  the  building  took  fire,  was  totally 
consumed,  and  amid  the  ruins  were  found  the  charred 
remains  of  a  human  being,  which  were  identified  by  Goss's 
wife  and  his  brother-in-law,  one  Udderzook,  as  the  body 
of  the  insured.  The  circumstances  were  suspicious  in 
view  of  the  large  amount  of  insurance  compared  to  the 
pecuniary  resources  of  the  alleged  decedent,  but  the  corpse 
was  so  far  consumed  that  the  only  hope  for  the  com- 

340 


RELATION  TO  LEGAL  MEDICINE 

ponies  lay  in  the  examination  of  the  teeth.  These  were 
found  to  be  so  defective  that  the  articulation  of  the  deceased 
must  have  been  affected,  while  Goss  was  noted  for  a 
set  of  fine,  regular  teeth,  and  interviews  with  more  than 
fifty  dentists  in  Baltimore,  Philadelphia,  and  Washington 
failed  to  show  that  he  had  ever  had  any  work  done  upon  them. 
The  jury,  of  course,  found  a  verdict  for  the  plaintiff,  but  the 
murder  of  Goss  soon  after  by  Udderzook  brought  the  whole 
plot  to  light,  and  proved  the  correctness  of  the  position  taken 
by  the  companies. 

In  a  quite  recent  case,  the  resident  of  a  Western  State  ob- 
tained a  large  amount  of  insurance  on  his  life,  and  soon  after 
his  residence  (a  small  farmhouse)  was  burned  down  one 
night,  and  he  was  alleged  to  have  perished  in  the  flames.  In 
this  case  also  the  corpse  found  after  the  fire  was  mostly  con- 
sumed, but  the  ingenious  speculator  was,  unfortunately  for 
himself,  not  conversant  with  the  principles  of  Legal  Medi- 
cine. He  was  not  aware  that  the  human  skeleton  changes 
with  years,  showing  indelible  marks  of  the  flight  of  time,  and 
while  he  was  himself  but  thirty-three  (33)  years  of  age,  he 
had  procured  the  dead  body  of  one  whom  the  medical  exam- 
iners pronounced  to  have  lived  for  at  least  sixty  years.  The 
arrest  of  the  insured,  still  in  the  flesh,  followed  soon  after,  and 
again  vindicated  the  claim  of  Legal  Medicine  to  be  of  service 
to  Life  Insurance. 

In  the  short  time  which  can  be  given  for  a  paper  on  any 
subject  on  such  an  occasion  as  the  present,  it  is  impossible 
to  do  more  than  offer  the  briefest  outlines  of  one  so  important 
as  that  which  I  have  considered.  But  I  trust  I  have  said 

341 


LIFE  INS.  IN  RELATION  TO  LEGAL  MEDICINE 

sufficient  to  show  how  vital  to  the  interests  of  life  insurance 
is  a  careful  study  of  the  science  of  Medical  Jurisprudence 
by  both  the  physicians  and  the  lawyers  interested  in  the 
growth  and  development  of  that  wonderful  product  of  modern 
civilization. 


342 


SPEECH  AT  ST.  NICHOLAS   CLUB 
DINNER 

AT  A  DINNER  GIVEN  BY  THE  ST.  NICHOLAS  CLUB  ON 

OCTOBER  218T,  1898,  COMPLIMENTARY  TO 

CHAPLAIN  GEORGE  R.  VAN  DE  WATER 


r 


SPEECH  AT  ST.  NICHOLAS  CLUB 
DINNER 

Mr.  President  and  Fellow  Members  of  the  St.  Nicholas  Club: 

IT  is  with  feelings  of  gratification  too  deep  for  expression 
that  I  enter  upon  the  discharge  of  the  duty  committed  to 
me  in  presenting  this  token  of  a  sincere  respect  and  affection 
to  one  whom  we  all  honor  and  love. 

Whatever  may  be  our  views  as  to  the  merits  or  justness  of 
the  late  war  with  Spain,  whatever  we  may  think  of  the  pro- 
priety of  keeping  for  ourselves  the  far  distant  Philippines, 
or  the  nearer  islands  of  Cuba  and  Porto  Rico,  whether  we 
approve  or  disapprove  the  details  of  the  campaigns,  Demo- 
crat or  Republican,  Expansionist  or  Contractionist,  Tros 
Tyriusve  we  unite  in  admiration  for  the  American  soldier. 
When  the  guns  which  thundered  against  Fort  Sumter  awoke 
the  nation  from  a  delusive  dream  of  peace,  the  dandies  of 
Fifth  Avenue  and  of  Beacon  Street  were  among  the  first 
to  rush  to  the  defense  of  the  insulted  flag,  as  the  dandies 
of  Hyde  Park  but  a  few  years  before  had  followed  their  flag  to 
the  walls  of  Sebastopol,  and  led  the  assaults  on  the  Malakoff 
and  the  Redan.  So,  when  the  emergency  arose,  the  so-called 
dudes  of  to-day  showed  the  same  manly  courage  and  action 
as  did  their  predecessors,  and  the  same  high  spirit  was 

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SPEECH  AT  ST.  NICHOLAS  CLUB  DINNER 

manifested  by  men  of  every  class  and  calling.  Nor  is  it  the 
least  valuable  result  of  this  war  that  men  from  every  section, 
North  and  South,  East  and  West,  dude  and  cowboy,  rallied 
around  one  flag  in  the  service  of  one  country.  Nor  have  we 
less  regard  for  those  who,  sharing  the  dangers  and  privations 
of  the  others,  were  men  of  peace,  not  war,  whose  duty  it  was 
to  comfort  the  sick  and  wounded,  to  bury  the  dead,  to  console 
the  survivors  —  a  service,  it  may  be  said,  more  trying  and 
exhausting  and  requiring  a  higher  courage  —  for  while  others 
on  the  fighting  line  were  absorbed  in  the  active  discharge  of 
their  work,  and  the  intense  demand  upon  their  physical 
strength  left  no  leisure  for  reflection,  these  had  no  such  dis- 
traction to  blind  their  eyes  to  the  horrors  which  they  wit- 
nessed and  the  dangers  to  which  they  were  exposed,  and  of 
these  one  of  the  bravest,  calmest,  and  most  efficient  is  our 
honored  guest  to-night. 

I  will  not  detain  you  by  reciting  the  deeds  of  the  Seventy- 
First  Regiment  from  the  time  it  left  New  York  until  the  poor 
and  feeble  remnant  returned.  They  are  part  of  the  history 
of  our  country,  familiar  to  all,  and  what  details  of  interest 
there  may  be  should  properly  come  from  the  lips  of  the  Regi- 
mental Chaplain.  I  am  concerned  only  to  express  to  him 
the  pride  that  his  fellow-members  of  the  St.  Nicholas  Club 
feel  that  one  of  their  number  should  have  borne  himself  so 
nobly  amid  such  sufferings  and  dangers  as  he  has  experienced, 
and  the  sincere  affection,  which  they  entertain  for  him 
widened  and  deepened  as  it  has  been  by  this  episode  in  his 
life.  As  a  token  of  that  pride  and  affection,  on  their  behalf 
I  present  to  him  this  loving  cup. 

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SPEECH  AT  ST.  NICHOLAS  CLUB  DINNER 

And  I  do  so,  Sir,  in  the  hope  and  firm  belief  that 
it  will  ever  hereafter  serve  not  only  to  recall  the  kindly 
feelings  of  its  donors,  but  also  the  memory  of  gallant 
deeds  well  done,  and  arduous  and  distressing  duty  faithfully 
performed. 


r 


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SPEECH    AT    DINNER    OF    ALUMNI 
OF  TRINITY  COLLEGE 

AT  THE  DINNER  OF  THE  ALUMNI  OF  TRINITY  COL- 
LEGE AT  HARTFORD,  CONN.,  ON  JUNE  27-TH,  1906 
AFTER  RECEIVING  THE  DEGREE  OF  LL.D. 
AT  THE  COMMENCEMENT  THAT 
MORNING 


SPEECH    AT    DINNER    OF    ALUMNI 
OF  TRINITY  COLLEGE 

Mr.  President  and  Gentlemen: 

IT  gives  me  great  pleasure  to  be  called  upon  to  respond  to 
this  toast,  as  I  am  thereby  given  the  opportunity  to  say 
what  I  wish.  My  experience  at  public  dinners,  both  as  speaker 
and  listener,  has  taught  me  that  the  statement  of  a  toast,  like  the 
announcement  of  a  text,  serves  simply  to  present  the  speaker 
to  the  audience.  When  I  was  first  advised  of  the  honor  which 
the  Trustees  of  my  dear  Alma  Mater  had  voted  to  confer 
upon  me,  I  was  somewhat  puzzled  to  know  what  I  had  done, 
to  deserve  it;  but  in  justification  for  their  conduct  I  will  ven- 
ture to  relate  one  incident  in  my  long  experience  at  the  Bar. 

Shortly  before  I  left  the  service  of  the  Mutual  Life  Insur- 
ance Company  of  New  York,  some  twelve  years  ago,  the 
State  of  Pennsylvania  passed  an  act  providing  that  no  re- 
striction or  condition  contained  in  an  application  for  a  policy 
of  life  insurance  should  be  binding  upon  the  insured,  unless 
a  copy  of  the  application  were  delivered  to  him  with  his 
policy.  Through  some  carelessness,  the  Company  was  not 
advised  of  the  passage  of  this  act  until  some  few  days  after  it 
had  gone  into  effect,  and  in  the  interval  several  policies  were 
issued,  among  which  was  one  to  a  man  in  Philadelphia,  who, 
a  few  days  after  the  receipt  of  his  policy  and  payment  of  the 

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SPEECH  AT  DINNER  OF  ALUMNI 

first  premium,  committed  suicide.  Investigation  showed  that 
his  affairs  were  hopelessly  involved,  that  he  could  not  by  any 
possibility  have  carried  the  policy,  and  it  seemed  to  be  clearly 
an  attempt  on  his  part  to  swindle  the  Company  out  of  the 
moneys.  But  the  restriction  against  suicide  was  contained 
in  the  application,  of  which  no  copy  had  been  furnished  him, 
and  therefore  under  the  act  mentioned  that  defense  was  not 
available.  In  thinking  it  over  I  concluded  that  what  is  called 
the  rule  in  Fauntleroy's  case  would  apply,  -s-  Fauntleroy 
having  been  a  banker  in  London  of  considerable  prominence, 
who  committed  a  forgery  and  was  hung  for  it  about  one 
hundred  years  ago.  The  Company  in  which  his  life  was 
insured  refused  payment  on  the  ground  that  death  at  the 
hands  of  justice  as  a  punishment  for  crime  was  not  a  risk 
which  they  had  assumed,  and  the  Court  sustained  their  con- 
tention. I  advised  the  Company,  therefore,  to  refuse  pay- 
ment of  the  policy  and  defend  the  suit  on  the  ground  that  it 
did  not  insure  against  suicide,  and  I  am  happy  to  say  that 
the  Supreme  Court  of  the  United  States,  to  which  the  case 
finally  went,  concurred  in  my  views,  and  that  is  now  the  law 
of  this  land. 

Another  aspect  of  the  matter  appeals  to  me  very  strongly. 
Many  who  hear  me  doubtless  remember  the  Reverend  Dr. 
Washburn,  for  many  years  Rector  of  St.  John's  Church  in 
this  city,  and  subsequently  Rector  of  Calvary  Church  in  New 
York,  where  he  died.  The  Doctor  was  a  profound  scholar 
and  deep  thinker,  an  earnest  and  scholastic  preacher,  but 
was  so  absorbed  in  his  pursuits  that  he  had  little  time  for  the 
social  side  of  life.  As  long  ago  as  when  I  was  in  college,  the 

352 


OF  TRINITY  COLLEGE 


story  was  told  that  one  of  his  vestrymen  took  occasion  to 
remonstrate  with  him  on  his  indifference  to  those  amenities, 
telling  him  that  he  would  very  largely  increase  his  strength 
and  his  influence  by  paying  some  attention  to  them.  The 
Doctor  replied  that  the  congregation  must  take  their  choice, 
as  he  could  do  one  of  two  things:  he  could  write  sermons,  or 
he  could  make  parochial  calls,  but  he  hadn't  time  for  both. 
He  maintained  the  same  course  of  life  after  his  removal  to 
New  York,  and  saw  very  little  of  his  fellow-men,  but  his 
church  was  crowded  at  every  service.  His  funeral  was 
attended  by  the  Bishop  and  all  the  prominent  clergymen  of 
the  city,  as  well  as  by  many  others,  and  after  the  service  a 
meeting  of  the  clergy  was  held  in  the  vestry-room  of  the 
church,  to  take  appropriate  action  on  the  death  of  their 
departed  brother.  One  after  another  of  the  clergy  rose  to 
express  in  the  strongest  terms  his  high  appreciation  and 
deep  affection  for  their  dead  friend.  During  all  these  pro- 
ceedings, as  Bishop  Potter  tells  the  story,  a  pale-faced,  tearful 
little  woman  stood  in  the  doorway,  supporting  herself  by  the 
jamb,  and  listening  with  intense  eagerness  to  even'  word 
that  was  spoken,  until  finally,  unable  to  contain  herself  any 
longer,  she  burst  out  with  the  bitter  cry,—  "Oh,  if  you  all 
loved  Edward  so,  why  didn't  you  tell  him  it  while  he  was 
alive?" 

This  reproach  cannot  apply  to  you,  and  from  the  bottom 
of  my  heart  I  thank  you,  Mr.  President,  and  through  you  the 
gentlemen  composing  the  Board  of  Trustees,  that  you  have 
conferred  upon  me  this  token  of  your  regard  and  esteem, 
while  I  am  still  alive  to  receive  it  and  to  enjoy  it. 

353 


